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President Trump’s High Noon
The terms of the President and the Vice President shall end at noon on the 20th day of January…
— US Constitution, Twentieth Amendment, Section 1
At noon on January 20, 2021, President Trump ceased being President of the United States. At 11:59:59 am Eastern Time, he remained the Chief Executive with full constitutional powers. Timing is everything.
Why do I raise this? Because the pretext for the raid on Mar-a-Lago is that President Trump committed a crime by removing classified documents from the White House, by failing to comply with the requirements for securing and storing such documents consistent with their classification levels, and did so in violation of the Espionage Act.
Seeking search warrants are an ex parte process. That is, only the government representatives meet with a judge and set forth the probable cause that a crime has been committed and that the requested search will produce evidence of the crime. As an investigative matter, this makes sense. Why would you alert the target of the search? The weakness of the process is that it is left up to the judge to consider all the arguments that the target might raise. Even a dispassionate and dedicated judge might not think of everything a target might legitimately argue, and that is why ex parte proceedings are not generally favored in the law.
An important question that President Trump’s attorneys would raise (totally aside from whether a warrant was necessary to obtain access to the documents) was whether those documents are in fact classified? Except for Nuclear Weapons information (which I will discuss in a moment), any government document that is to be restricted from public view is controlled under rules issued by the President. Therefore the President has latitude to treat any document as classified or not so long as that individual is President.
But, you say, those documents have classification markings! Yes, they may, but the markings are intended to alert possessors of their sensitivity and limit the conduct of all executive personnel who report to the President; the markings do not limit the authority of the President. Yes, a declassification normally involves striking through the marking and is initialed by the person authorized by the President to remove the classification markings, but the markings do not control the President. Nor does the failure to remove markings from a declassified document mean that it remains classified if the President has declassified it — it simply means that appropriate measures should be taken to treat it as classified until the markings are removed and its status is clear. This may seem like a distinction without a difference, but its not. For example, it is prudent to treat every gun as if it is loaded until it is demonstrated to not be loaded. But if it is a crime to possess a loaded weapon, then treating it as loaded does not mean a crime has been committed — it must be demonstrated that the gun was in fact loaded at the time of possession.
But, you say, the President failed to follow the procedures to declassify a document! I respond, what procedures? The ones the put in place under the authority of the President? No court has ever ruled that in a matter over which the President has full plenary powers is he/she personally bound to comply with orders that apply to subordinates. A President’s action may be imprudent or inadvisable, but it is not illegal.
So the important question for this kerfuffle is what did President Trump do regarding these documents before noon on January 20, 2021? If he directed they be boxed up and removed from the White House security, he had the authority to do so. Does anyone believe that these documents were still in the White House at noon? The classification nature of the documents is a different question than who owns it and whether they were supposed to be under the control of the National Archives. But that ownership dispute does not involve a crime, and it is not an unusual one with respect to Presidents leaving office and setting up Presidential libraries.
Isn’t it interesting that the nuclear weapons talk didn’t make the rounds of the media until after the general declassification authority had already been broadcast by defenders of President Tump? And why was that? Because certain nuclear weapons information is classified by statute and not under the authority of the President. But what information is that? It is —
- all data concerning (1) design, manufacture, or utilization of atomic weapons; (2) the production of special nuclear material; or (3) the use of special nuclear material in the production of energy, but shall not include data declassified or removed from the Restricted Data category pursuant to section 142 [of the Act].[1]
In general terms, it is information that enables someone to make a working atomic weapon. Information needed by the military to use an atomic weapon is “Fomerly Restricted Data”. It is referred to as “formerly” because the first Atomic Energy Act passed in 1946 restricted almost all information about atomic bombs to people working in the Atomic Energy Commission (now the Department of Energy). In 1954 the law was amended to enable the military to know more about nuclear weapons to facilitate planning for new designs that utilized a variety of delivery systems — bombs, missiles, torpedoes, depth charges, artillery. The line between Restricted Data (RD) and Formerly Restricted Date (FRD) can get blurred. If the Department of Energy and the Department of Defense has a dispute over whether certain data is RD or FRD, then the President makes the determination. And if the President makes determines that it is FRD, then the data falls under his general authority to classify or declassify. RD and FRD are not classifications in themselves — classification is based on the level of harm that the United States could suffer from its disclosure to an enemy. The release of RD has a presumptive harm as determined by Congress; the release of FRD and other government classified data is in the discretion of the President.
President Trump was free to make decisions and act until noon on January 20, 2021. The documents were presumptively removed from the White House before then. Are there some documents that the President did not intend to have removed? If so, the President does not have the required intent for a criminal act. Were there documents that did not involve RD that the President intended be removed for future public disclosure ? Then they were de facto declassified upon removal if not earlier, and that disclosure is not criminal unless, per the Espionage Act, there is a
(i) harm the national security of the United States; or
(ii) benefit any foreign government to the detriment of the United States.
It is evidence that some parts of this country are far, far down the rabbit hole when it comes to President Trump that the (Democrat) Department of Justice would assert to a federal magistrate judge that there was probable cause for a violation of the Espionage Act, and that a federal magistrate judge, obligated as he is in an ex parte proceeding to consider what legal defenses a target might have if they were permitted to make an argument to him, that a search warrant was granted.
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The Trump years are a perfect example of the President’s subordinates believing they are in fact higher authorities than the President. That their boss was their underling and that he must do as they demand. (See: Vindman, A. et al)
I would add that if the documents were not removed prior to noon on Jan 20, 2017, but Trump instructed his staff that they should be removed, then they were also, de facto, unclassified by President Trump . President Biden and his staff could have re-classified them before they were actually removed and properly secured them. If he did re-classify them before removal, then allowed them to be removed, then President Biden, de facto, declassified them.
The Trump years are a perfect example of the President’s subordinates believing they are in fact higher authorities than the President. That their boss was their underling and that he must do as they demand. (See: Vindman, A. et al)
Great point Drew. In fact, almost the entire Federal Bureaucracy has come to believe that they are a law unto themselves, and we can thank our Supreme Court for that.
This week I saw some video allegedly showing these very boxes being removed. (Can’t remember where.) Find the time stamp on that and you’re golden!
I left the following comment on Powerline in a similar discussion prompted by Scott Johnson’s recent post:
Kash Patel was interviewed on the John Soloman podcast. He stated categorically that he was in the room on January 19, 2021 with Trump and several others whom he didn’t name specifically when Trump verbally proclaimed the de-classification of all the documents relating to Crossfire Hurricane. Trump was still POTUS at that moment. It is thought by some that this raid was intended to secure the secrecy of those documents and protect the FBI and DOJ from exposure of their malfeasance in the Russia Hoax against Trump. Trump is currently suing Hillary Clinton et al for defamation, etc. He would want those documents in his possession.
There is process for declassification with the express purpose of determining what has been done. I am not aware that doing this verbally works, but I also can’t really dispute it categorically. I’m sure the answer is out there someplace.
And there’s this.
from here:
The classification issue does not appear to me to be relevant as to two of the statutes (see below) charged in the warrant. Not sure about the third, the so-called Espionage Act, but it seem relevant.
18 USC 1519
18 USC 2071
Fair enough. But also note that it has to be with intent to impede and/or willfully and unlawfully… etc etc. What did President Trump know about an investigation on January 20? How relevant would someone reasonably anticipate a document might be to some imagined investigation? This is so much Monday morning quarterbacking and mind reading even if the investigation were legitimate, which is not a foregone conclusion any more than the Mueller investigation was. If you take Jan 6 out of the picture and what the President would have to speculate about it and how a legitimate investigation would be conducted, this removal debate does not seem particularly extraordinary in the context of Presidents taking documents for their libraries.
It is my understanding that POTUS is the single ultimate source and authority of classification. As such, he can de-classify any document in any way he chooses. He could write a book, make a speech, write a letter, or simply say it…”I de-classify this…” and it is done. There are no rules that stipulate acceptable or non-acceptable procedures. Do you understand this is NOT the case @hoyacon?
This kind of suggests what the documents Trump had were, and why they had to be taken away. They were likely Trump’s evidence.
Meanwhile, Biden gets through another week or so with no discussion in the media of his failure in all areas of the Presidency.
A little vague, isn’t it? And yet it would conveniently preclude Trump from holding office.
Courts have ruled that only the Constitutional qualifications are applicable. Congress cannot write a law to add qualifications on the Executive Branch (or any branch).
Hoyacon: “The classification issue does not appear to me to be relevant as to two of the statutes (see below) charged in the warrant. Not sure about the third, the so-called Espionage Act, but it seem relevant.”
Since this was a incredibly vague and broad, unconstitutional fishing expedition, one cannot say whether classification issues are in play or not, but I since they found only 33 boxes for a four year presidency, they likely found nothing important or that was classified.
But why it is relevant is that the DOJ is going to have to find something worthwhile in the end and so it most likely will be classified.
For certain national defense related documents, apparently just willfully retaining them could violate the Espionage Act, even if you originally possessed them lawfully.
People are going to speculate on both sides, no stopping that, but unless he’s indicted, or some other litigation ensues which would cause the affidavit in support of the warrant to be made public, or some accurate info is leaked, it may be a long long time before the full story is known.
If you want to know the truth about this, quit/avoid smoking, exercise and eat a balanced diet, do all the screenings your doctor recommends, wear your seatbelt, etc.. It may be awhile.
Thanks.
No one’s saying any longer that the documents contained national defense (nuclear production) information.
But anyway, the argument has been changed by the government once again. This no longer has anything to do with classified documents but espionage and someone’s idea of obstruction of justice.
First, indictments are trivial to get and can be timed (weaponized) by the Dems. Second, I heard that discovery only happens in the trial phase. The Dems might create indictments without ever having a trial. This is lawfare not justice so many outcomes are possible.
They really are casting about for a believable excuse.
A conviction would not prohibit him from being President.
Only the Senate can do that after an Impeachment.
Uh oh
They also act like Mara Lago isn’t equipped for classified. Holy moly stupidity. Trump had total classified functionality as President when he chose to be there. He has a clearance still.
Then we must run Trump and force their hand. They will not stop until they destroy him then they will move on to the next guy, make them expose themselves and all the left wing crazies.
Yeah, you’re right. Didn’t he have a SCIF installed?
Can’t create indictments and then let them sit. Once an indictment is handed down, there will either be a trial, a guilty plea, or a dismissal. Speedy trial statutes guide that process and how the time is counted. The only way an indictment can sit untried is if the Defendant absconds.
That’s not to say it’s not a long process sometimes, but that is most often due to extensions of time requested, or otherwise caused by, the defendant. Again, there are specific statutes that guide that process and how to count the days the government has to bring the case to trial.
I may have missed it but I wasn’t aware the government was making any arguments beyond Garland’s statement. There’s no need for them to argue anything at this point, beyond the legitimacy of the search.
I would assume they had a secure area for documents and comm.
Heck, when generals retire and become graybeards, some need access to classified. All they need is a certain safe, certain paperwork, and certain protocols. Every security clearance is maintained by an agency. I had one that could go all the way up to TS/SCI, if necessary. A company asked me if I would work for them and would it be ok for my clearance to be held by their agency when I retired. I thanked them and turned down their very generous salary offer and told them not to invest in my clearance. I intended to walk away and be a mom. They called me a year later and I again said “no.” I enjoyed my next 18 years in adult education despite the $50,000 pay cut. My kids needed me and I always could afford what we needed.
There are overt comments, and then there are covert ones that tell their propaganda arms what to spread. The whack holes are now saying he will go to jail for espionage because he was going to sell his classified to….. Nutters believe anything.