The documents seized by the FBI from Donald Trump's Mar-a-Lago resort have already been declassified under the president's "inherent constitutional power," according to Mike Davis, a former clerk for Supreme Court Justice Neil Gorsuch.
"[President Trump] has the constitutional authority to declassify anything he wants," Davis said in an Aug. 12 interview with NTD. "And so, when he sent boxes out of the White House, he declassified them."
According to a newly unsealed receipt of the Aug. 8 raid, the FBI has taken 11 sets of "classified documents" from the former First Family's Florida home, including one labeled as "various classified/TS/SCI documents."
Files that contain sensitive compartmentalized information (SCI), a classification above top secret (TS), may only be stored, handled, or discussed in designated secure facilities. Such a facility had been set up at Mar-a-Lago during the first term of Trump's presidency.
It's constitutionally sound for a president to decide which information is classified and which is not, said Davis, citing the Supreme Court decision in the 1987 case known as Department of the Navy v. Egan.
"The president, after all, is the Commander in Chief of the Army and Navy of the United States, according to Article II of the Constitution," the high court's 5–3 majority opinion reads. "His authority to classify and control access to information bearing on national security ... flows primarily from this constitutional investment of power in the president, and exists quite apart from any explicit congressional grant."
"That means that he [President Trump] has inherent constitutional authority under the Commander-in-Chief Clause in the Constitution, and neither Congress nor bureaucrats can take that authority away from him through statute or regulations," Davis explained.
Davis also took issue with the Justice Department's handling of the FBI raid. He noted that Attorney General Merrick Garland apparently did not consult the Justice Department's Office of Legal Counsel (OLC), which serves as the de facto general counsel for the executive branch, before greenlighting the operation.
"I've seen zero evidence that [Garland] sought an opinion from the OLC," he told NTD.
When asked about an affidavit that supposedly contains a probable cause for the raid, Davis said the Justice Department should have already released it, but will likely try to "hide it as much as they can."
"They're going to try to hide behind classification," he added. "The Justice Department already misrepresented to the American people that Attorney General Merrick Garland did not authorize this warrant, when in fact he admitted that he did. They also likely misrepresented that President Trump had highly confidential, nuclear secrets."
The Justice Department didn't respond to a request to confirm whether or not Garland had sought the OLC's opinion before authorizing the search warrant.