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Former president Donald Trump’s lawyers say they may use evidence suggesting that Trump had a high-level security clearance as recently as last year to bolster their defense that the former president was acting in “good-faith and non-criminal states of mind” when he took sensitive documents from the White House to his Florida residence after leaving office.

The revelation came in <a href="https://www.washingtonpost.com/documents/b06a3e20-01d0-4a17-823d-113d519edf5e.pdf" target=_blank>a legal filing late Tuesday night</a> in which Trump’s attorneys urged Judge Aileen M. Cannon — who is overseeing Trump’s federal trial in Florida for allegedly <a href="https://www.washingtonpost.com/national-security/2023/07/27/trump-carlos-deoliveira-classified-indictment/?itid=lk_inline_manual_38" target=_blank>mishandling classified documents</a> — to force prosecutors to produce more information about the evidence they have about the former president. A “motion to compel discovery” is a standard part of pre-trial legal proceedings.

In the 65-page filing, Trump’s lawyers disclosed some of the defenses they plan to use in the case, one of <a href="https://www.washingtonpost.com/politics/interactive/2023/trump-investigations-indictments/" target=_blank>four criminal trials Trump is facing</a>. They asked for communication between prosecutors and the Biden administration, which they said could show that the indictment against Trump is politically motivated, and they argued that prosecutors must show more evidence that Trump damaged national security by possessing the documents.

Among the more specific possible defenses: Lawyers for Trump say he had an active security clearance years after leaving the White House, based on a government document from June 2023 that still listed him with a “Q” clearance from the Department of Energy. The document was dated a few weeks after prosecutors indicted Trump in the case. He faces 40 counts related to willful retention of national defense information; obstruction, withholding or altering of documents; and making false statements, and has pleaded not guilty.

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Trump attorney Todd Blanche<a href="https://www.washingtonpost.com/national-security/2023/11/01/trump-florida-trial-delay-cannon/" target=_blank> first publicly referred to the "Q" clearance at a November court hearing in Florida</a>, saying he had learned Trump “continued to have an active clearance” when prosecutors turned over the Department of Energy documentation as part of what is known as Brady<i> </i>material — evidence that prosecutors must share with defense lawyers that could be helpful to the defense.

In the latest filing, Trump’s attorneys suggested they still do not know the entirety of what the Department of Energy filing entails and asked the judge to force prosecutors to provide more information about the “Q” clearance. The term refers to a type of security clearance handled by the agency, whose classified information focuses largely on nuclear secrets. It became popular in right-wing conspiracy circles because of the movement known as QAnon, which originated during Trump’s presidency and centers on made-up claims circulated by a person known as “Q”, who supporters claimed had that level of clearance.

Trump’s attorneys did not suggest that they believed the clearance would allow Trump to store highly classified material at Mar-a-Lago, his Florida home and private club. Rather, they said it speaks to his state of mind and shows that he was acting in good faith when he stored the materials at his personal residence.

Their filing accuses the Energy Department of trying to modify an “inconvenient truth” by removing Trump’s name from the clearance list weeks after his indictment.

“In order to permit President Trump to prepare his defenses and present them to the jury, the Office must produce documents and communications relating to that decision,” the filing says.

So why would Trump be on a “Q”-level security clearance list even after he left the White House?

Security experts — who have not seen the list and do not know if Trump is on it — said that every agency has different protocols to track who is eligible to access certain information. The Department of Energy, they said, maintains a list that is not always updated regularly. Being eligible to view the sensitive material doesn’t give someone unfettered access to it, however.

“A clearance alone is not sufficient for access to classified materials,” said Steve Aftergood, a security expert. "You need a clearance and you need a need to know. As a former president, Mr. Trump’s need to know — unlike his security clearance — would have expired.”

Presidents <a href="https://www.washingtonpost.com/national-security/2022/08/25/trump-classified-legal/" target=_blank>do not go through the same security-clearance process</a> as other government officials. Instead, they automatically gain access to restricted material upon taking office.

Former presidents retain some level of access to classified materials because they can be included on some sensitive discussions to offer their expertise, said Mark S. Zaid, a lawyer who has handled espionage cases. But he agreed with Aftergood that such access is only granted when there is a specific need.

“The reality is that [Trump] wouldn’t necessarily still have access because no one would have given him access,” Zaid said. “But he would have had eligibility regardless as a former president.”

The charges Trump faces in Florida include 32 counts of improperly retaining national defense information, with each count representing a different document that was allegedly in Trump’s possession at Mar-a-Lago.

According to court filings, one of those documents related to nuclear weapons and would have been off-limits to anyone without a “Q” clearance. That document is marked as “Formerly Restricted Data,” according to a previous court filing, which means that it contains information related to the workings, location or procedures for securing nuclear weapons. While the bureaucratic label has the word “formerly” in it, security experts say it is a misnomer because such information is still classified and restricted.

Other documents that Trump is accused of retaining require different types of clearance. Trump lawyers said in their filing that they may use the Department of Energy documentation as a basis to at least dismiss the charge for retaining the nuclear document.

<i>Devlin Barrett contributed to this report.</i>

Washington University in St. Louis, BA

Perry Stein covers the Justice Department and FBI for The Washington Post. She previously covered D.C. education. Before she joined The Post in 2015, she was a staff writer for Washington City Paper and wrote for the Miami Herald. 

Perry Stein

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Trump defense claims document shows he kept ‘Q’-level security clearance

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