Opinion | Did Trump declassify documents? Criminal indictment of former president has no legitimate basis WashTimesOpEd
In addition, the government could argue that the circumstantial evidence, especially the failure to announce any declassification until the criminal investigation began, can be weighed against his allegation. This is a weak argument, especially if there is no requirement in the law that declassification be announced or recorded.
These factual disputes would have to be resolved by 12 jurors if the government were to present sufficient evidence to warrant its submission to a jury. The third basic issue, and the one that could determine the outcome of any criminal case, is closely related to the second: Who has the burden of proof on the claim of declassification? That is an issue of legal procedure.
In the usual criminal prosecution, the government has the heavy burden of proving every element of the crime beyond a reasonable doubt. The status of the documents as classified is an element of crimes that prohibit the unauthorized possession of classified material. The government may claim that the question of whether documents once classified have been declassified is a matter of law to be decided by the judge. That is a weak argument under the Fifth and Sixth amendments and their history.
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