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9 Trump claims about the Mar-a-Lago classified documents probe, fact-checked

A court filing by the Justice Department in August 2022 contains this image of documents seized during the FBI's search in Donald Trump's Mar-a-Lago estate. (AP)

By Amy Sherman June 7, 2023

The documents became automatically declassified when he left the White House.

The search of Mar-a-Lago was illegal.

Barack Obama did it.

Joe Biden did it.

And what about Hillary Clinton’s emails?

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President Donald Trump has offered these defenses and more when talking about the federal investigation into his handling of classified documents.

Trump said June 8 he has been federally indicted over his handling of classified documents, the first time a former U.S. president has faced federal charges and his second indictment this year. Trump shared on Truth Social that he was summoned to appear at a federal courthouse in Miami on June 13 at 3p.m. "I AM AN INNOCENT MAN!" he wrote.

The indictment showed about three dozen counts against Trump, including charges of willful retention of national defense information, conspiracy to obstruct justice, and making false statements. Classified documents included information regarding defense and weapons, U.S. nuclear capabilities and potential vulnerabilities to the U.S. and allies in a military attack, the indictment said.

The probe started with Trump refusing to cooperate with the National Archives after leaving office and escalated into an unprecedented search of Trump’s Mar-a-Lago resort and home in Palm Beach, Florida.

Trump had preempted a possible Justice Department announcement on June 5, asking on Truth Social in all caps, "How can DOJ possibly charge me, who did nothing wrong?" Trump questioned why President Joe Biden hasn’t been charged in a separate documents investigation and why Hillary Clinton wasn’t charged for deleting emails.

Several of his defenses are false, misleading or unsupported by legal precedent.

Here is a look at our fact-checks of Trump about presidential records:

Classified documents "become automatically declassified when I took them" after leaving the White House.

(May 10, 2023, CNN town hall)

This is unsupported by legal precedent.

Presidents have an unusual degree of authority to declassify documents. But there’s judicial precedent that counters Trump’s belief in what might be called "in-brain declassification."

In three legal cases during the Trump presidency, courts rejected the idea that a president can declassify simply by tweeting or issuing a news release and not following up through more formalized processes involving executive agencies. That’s more concrete action than the "automatic" declassification Trump cited.

"President Barack Hussein Obama kept 33 million pages of documents, much of them classified. How many of them pertained to nuclear? Word is, lots!"

(Aug. 12, 2022, media statement)

This is Pants on Fire!

The National Archives and Records Administration, or NARA, said in response to Trump’s statement that "former President Obama has no control over where and how NARA stores the presidential records of his administration."

The National Archives said it took custody of Obama’s presidential records when he left office. The arrangement to preserve Obama’s records has been publicly known since 2016, before he left office.

The agency said about 30 million pages of unclassified records went to a National Archives facility in the Chicago area. Classified Obama presidential records are in a facility in the Washington, D.C., area.

NARA’s statements didn’t specifically mention records about "nuclear" weapons or materials. NARA wrote that the classified records were relocated to the National Archives at College Park, Maryland, "to facilitate their review for declassification."

Joe Biden as vice president didn't "have the right to declassify" documents.

(Jan. 10, 2023, interview)

This is False.

An executive order Obama signed in 2009 authorized the vice president to classify and declassify documents. Trump and Biden did not issue their own orders, so Obama’s order remained in effect.

This means that because Biden had original classification authority as vice president, he also had authority to declassify information that he had classified in the first place.

Attorney General Merrick Garland appointed a special counsel in January to investigate the handling of documents found at Biden’s home and at Biden’s post-vice presidential office at the Penn Biden Center for Diplomacy and Global Engagement in Washington, D.C.

We don’t know who initiated the classifications on those documents.

"Biden is obstructing by making it impossible to get the 1,850 boxes" of documents.

(April 4, 2023, in a speech at Mar-a-Lago following the indictment in the Stormy Daniels case)

This is unsupported.

Trump was referring to a donation of 1,850 boxes of Biden’s senatorial papers to the University of Delaware, which have been housed on the campus since June 2012, according to the university library.

The documents, dating from from 1973 to 2009, include committee reports, drafts of legislation and other files. In 2020, Biden said the collection also contains speeches and policy positions.

The university’s website says the records would be made publicly available no sooner than Dec. 31, 2019, or two years after Biden retires from public life. Until then, access is available only with Biden’s express consent.

The FBI has conducted two searches of these papers, which CNN reported were carried out with the consent and cooperation of the president's legal team.

The searches of the university collection followed FBI searches of Biden's homes in Wilmington and Rehoboth Beach, Delaware, and the Penn Biden Center’s Washington, D.C., office.

The search of Mar-a-Lago was an "illegal and unconstitutional raid."

(April 4, 2023, in a speech at Mar-a-Lago)

This is wrong.

FBI agents followed the law in securing a search warrant used to enter Mar-a-Lago.

The FBI warrant was signed by a U.S. magistrate judge.

"Under the (Presidential Records) Act, I am supposed to negotiate with NARA, the National Archives and Records Administration."

(April 4, 2023, in a speech at Mar-a-Lago)

This is inaccurate.

The Presidential Records Act requires that all documents be returned to the National Archives upon a president’s departure. It did not create a negotiating process by which ex-presidents get to choose which documents to keep and which go to the government.

Former President Jimmy Carter signed the Presidential Records Act in 1978, applying to all records received or created after Jan. 20, 1981. The law built upon previous legislation Congress passed in 1974 to stop former President Richard Nixon from destroying tapes linked to the Watergate scandal.

The Presidential Records Act transferred ownership of presidential records to the U.S. government.

"Hillary Clinton was allowed to delete and acid wash 33,000 emails AFTER they were subpoenaed by Congress. Absolutely nothing has happened to hold her accountable."

(Aug. 8, 2022, on Truth Social)

There are key differences between the two situations.

In 2014, Clinton’s lawyers combed through the private server and turned over about 30,000 work-related emails to the State Department and deleted the rest, which Clinton said involved personal matters, such as her daughter’s wedding plans.

Clinton repeatedly said she had no classified emails on her server, but the results of an FBI investigation found otherwise.

Of the tens of thousands of emails investigators reviewed, 113 contained classified information, and three of those had classification markers. Former FBI Director James Comey said in 2016 that Clinton should have known that some of the 113 were classified, but others she might have understandably missed. In a sign of the uncertainty around classification, in 2018, a Justice Department report found that the classification markings were not clear.

Ultimately, Clinton paid a political, not a legal, price for her email practices.

Trump took clearly marked classified documents from the White House to Florida, where he stored them in a location that lacked adequate security, said Bradley Moss, a Washington-based lawyer who works on national security cases.

The presence of classified information in Clinton’s emails was less obvious.

"The emails were never marked as classified because these were communications from unclassified government accounts," Moss said.

In three instances, email chains included information with classification markers. It was unknown whether Clinton knew of that marked information’s presence, or whether the classification marking was clear.

"George H.W. Bush took millions of documents to a former bowling alley and a former Chinese restaurant where they combined them. So they're in a bowling alley slash Chinese restaurant. By contrast, I had a small number of boxes and storage at Mar-a-Lago, very small, relatively guarded by the great Secret Service."

(Oct. 8, 2022, at a rally for Nevada Republicans)

Trump is right about the location of the facility in Texas where Bush’s presidential papers and possessions were sorted before his presidential library was built. But Trump’s ridicule of the facility’s security standards was unfounded.

Items of Bush’s including documents were sorted in an old bowling alley and in an adjacent space that used to be a Chinese restaurant’s kitchen.

The National Archives said "reports that indicate or imply" that the presidential records of George H.W. Bush or other past presidents "were in the possession of the former presidents or their representatives after they left office, or that the records were housed in substandard conditions, are false and misleading."

Prior president's papers were handled according to standard procedures, with the National Archives fully involved. Trump’s was not.

"There's a big difference between having records in a facility managed by the National Archives, even if it is a rented facility, and having records in a private residence," said Benjamin Hufbauer, an associate professor of art history at the University of Louisville and an expert in presidential libraries.

"What is the difference between this and Watergate, where operatives broke into the Democrat(ic) National Committee? Here, in reverse, Democrats broke into the home of the 45th President of the United States."

(Aug. 8, 2022, on Truth Social)

There’s one crucial difference: The break-in of DNC offices in the Watergate complex was illegal, and the Mar-a-Lago search was approved by a federal judge.

Randall D. Eliason, a lecturer at George Washington University who spent 12 years as an assistant U.S. attorney for the District of Columbia, called the comparison "ridiculous."

"Watergate was a burglary," he said. "It was illegal, done in secret, with no authorization. Comparing the two is like saying there is no distinction between someone who goes to a bank, writes a check, and properly withdraws their money and someone who puts on a mask and robs the bank at gunpoint."

PolitiFact staff writers Loreben Tuquero and Sofia Bliss-Carrascosa as well as senior correspondent Louis Jacobson contributed research.

UPDATE, June 8-9: This story was updated with Trump's Truth Social posts and a summary of the federal indictment.