The newly released FBI affidavit raises fresh questions about what comes next in the inquiry against Donald Trump.
In this Aug. 10, 2022, file photo, Donald Trump departs Trump Tower in New York. Credit: Julia Nikhinson / AP

Former President Donald Trump was required to hand over all White House documents with classified markings under a May 11 grand jury subpoena, regardless of whether he believed he’d declassified them, the Justice Department said in a footnote of a recent court filing.

Months before the Aug. 8 search of Trump’s Mar-a-Lago resort, his lawyers asserted in negotiations that the former president had “absolute authority to declassify documents,” although they didn’t claim he had actually done so, the Justice Department said in an Aug. 29 filing made public Friday night in Washington, where the grand jury had been convened.

“The government notes that the subpoena sought documents ‘bearing classification markings,’ and therefore a complete response would not turn on whether or not responsive documents had been purportedly declassified,” a lawyer with the DOJ’s National Security Division said in the filing.

The May 11 subpoena was intended to recover all classified documents remaining at Mar-a-Lago that Trump hadn’t already handed over when he returned 15 boxes of such records to the National Archives in January.

Trump’s failure to properly respond to that subpoena when the FBI visited his resort on June 3 is what ultimately led the FBI to seek a search warrant. Trump’s lawyers assured the agents that no such documents remained on the property, the DOJ said.

Even if Trump had declassified the documents, legal experts have said the former president wasn’t necessarily allowed to take them home because the records still needed to go to the National Archives first.

“Declassified Presidential records are still Presidential records and property of the government,” Kel McClanahan, executive director of the nonprofit National Security Counselors, said in an interview.

The government briefly described Trump’s theory in a motion seeking emergency permission to reveal details about the grand jury proceeding. The DOJ needed to include the details in a separate brief that had been requested by the judge handling Trump’s lawsuit seeking appointment of a “special master” to review documents seized from Mar-a-Lago.

A Trump-appointed judge in Florida is currently weighing that request. Trump’s lawyers didn’t immediately respond to a message seeking comment.