- If the Mar-a-Lago classified documents case is dismissed, Trump can probably take his 33 boxes back.
- As president, he'll control the National Archives and DOJ.
- And when he leaves DC, he'll enjoy broad immunity from prosecution thanks to the US Supreme Court.
When criminal defendants have their cases dismissed, they generally get their stuff back, with the obvious exception of illegal guns, drugs, or any other contraband.
So what about a newly reelected Donald Trump?
Special counsel Jack Smith has signaled that he is winding down his two Trump cases ahead of the January 20 inauguration. He cites long-standing Justice Department policy barring the prosecution of sitting presidents.
If the Mar-a-Lago classified documents case is dismissed, can Trump take back those 33 boxes of keepsakes — ranging from Christmas decorations to highly sensitive nuclear secrets — that the FBI seized from his Palm Beach resort two years ago?
Legal experts told Business Insider that the short answer is yes — if he wants them back and takes possession of them while still in the White House.
That includes the documents Smith sees as contraband, currently stored in an FBI "SCIF," or sensitive compartmented information facility. Prosecutors have said over 300 classified documents were tucked away in boxes found stacked in Trump's ballroom, bathroom, and storage closets.
As president with authority over the Justice Department and the National Archives Records Administration — both fall under the executive branch — there is little to stop Trump from flouting long-standing rules for handling and storing government secrets.
And if he wants to bring it all back to Mar-a-Lago when he leaves office, his options include declassifying whatever is classified — presidents enjoy broad declassification authority — and telling the National Archives to declare the whole lot to be personal, not presidential, records.
Whatever he decides, he'll be protected for life by the broad immunity from prosecution bestowed upon him by the US Supreme Court in July, legal experts said.
"If he has the chutzpah to ask for his boxes back, and there's no one on the other side to raise any protest, then he may well get them back," said attorney Paul Shechtman, a former federal prosecutor in Manhattan, where he served as chief of appeals.
"The bottom line is he's going to control the executive branch, including the Department of Justice," said Brian Greer, an attorney with the CIA's Office of General Counsel who served during both the Obama and Trump administrations.
"Combined with the Supreme Court immunity decision, that will give him extremely broad discretion over what to do with them," Greer said of Trump's boxes.
In the 10 remaining weeks until the inauguration, Smith will likely move to dismiss the case, sum up his findings in a report for outgoing Attorney General Merrick Merriand, and then just leave Trump's documents and boxes behind in the custody of the FBI, experts said.
"He could say to whoever is in charge of the DOJ next, 'This is your headache,'" said Michael Bachner, a former Manhattan prosecutor and frequent commentator on the president-elect's legal travails.
Smith could try instead to return the classified documents to the agency he says is their rightful owner, the National Archives. But such a move could be easily undone.
"Trump can easily retrieve them from there," with or without declassifying them, Bachner said. "As long as he's doing it under the auspices of an official, presidential act, he'll have an argument that he is immune."
Trump's classified documents indictment says he repeatedly defied the National Archives and federal subpoenas in retaining classified documents and other presidential records that he took to Mar-a-Lago when he left the White House in January 2021.
The raid clearly stung. "These are dark times for our Nation, as my beautiful home, Mar-A-Lago in Palm Beach, Florida, is currently under siege, raided, and occupied by a large group of FBI agents," Trump said at the time, in a statement disclosing the search warrant had been executed.
"Nothing like this has ever happened to a President of the United States before," he wrote.
The FBI's surprise raid of Mar-a-Lago was an "attack by Radical Left Democrats who desperately don't want me to run for President in 2024," Trump added.
The case suffered a near-mortal blow this summer when US District Judge Aileen Cannon found that Congress should have approved Smith's appointment as special counsel.
She dismissed the case, a decision Smith was appealing when Trump was elected. That appeal is now on hold, with Smith saying that on December 2, he will announce his plans for the documents case and Trump's election interference case.
Trump had pleaded not guilty in both cases, calling the prosecution a politically motivated "witch hunt" and saying that he had declassified the documents before leaving office.
He has sued Biden's Justice Department for $100 million, saying the raid was improper, and promised to fire Smith immediately upon taking office. The special counsel could beat him to it by resigning before Inauguration Day. His spokespeople did not immediately respond to a request for comment on this story.
For now, the classified documents seized from Mar-a-Lago remain evidence. By law, Trump and his lawyers can only view them in a secure facility.