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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 legacy Press represents the government. And it was expressing sequentially that sources familiar with the affidavit (that would be in the government — not Trump) were saying Trump’s crime was that it’s stolen, it’s classified, it’s nuclear, and then it’s espionage.
A little vague, but mostly very broad. Broad enough that a person of ordinary moral sense could arguably violate it without any of those conscience alarm bells going off. Statutes like that may be necessary, but they require a lot of discretion for prosecutors and judges to take mitigating factors into account.
The funny thing is that one of the driving motivations behind these statutes (though not so much the espionage one), is anti-corruption, transparency, making sure the swamp creatures can’t hide their corrupt dealings, or at least get punished for doing so. So, if you’re pro swamp draining, worried about the deep state, etc, you may want to keep these statutes broad, even if they occasionally snag one of your guys.
Marjorie Merriweather Post had three bunkers installed during the Korean war. As I recall, Trump had them restored for peace of mind of his governmental guests. And I thought I read someplace that one was turned into a SCIF. Either way I’m sure there’s one located there.
You really have faith in modern American jurisprudence.
“Can’t” in this context means unconstitutional. Yet, the J6 prisoners are going on 18 months waiting for a trial (without bail), when 4 months is typical. In D.C. they courts can do as they please and Constitution be damned.
[picture moved to another thread]
Ding ding ding. It’s not about him — it’s about us.
More likely to find the truth on the other side of heaven.
A Yonex head if they picked up files with attorney privilege.
There was a great episode on Viva & Barnes tonight discussing the Raid and how badly the warrant falls short of constitutional, DOJ, and FBI requirements. A lot of insight in the shenanigans that took place in the obtaining of the warrant and the magistrates’s approval. A very worthwhile watch.
I told you I would believe the nuclear documents story until Tuesday or whenever they come up with a better story.
You get those arguments from the NY Times or Washington Post. It amounts to the same thing as government arguments, with the advantage that if the government party wants to, it can pretend those arguments didn’t come from the government.
There is no authority for this. Trump’s power as Chief Executive come from the Constitution. Congress can’t infringe on that power with statutes. I’m referring to any statute aging to control his documents.
Trump can declassify documents as he pleased. He was the ultimate authority. The rules they refer to are executive orders that apply to the people under the President. DOJ and FBI are trying to assume power as their own branch.
No doubt they have nothing and were desperate for something. As hate -crazed, arrogant SOBs, they believed their own lies that Trump is corrupt and therefore believed they would find something.
Yes, but if the candidate is in prison or restricted in movement by a federal or state judge in the course of a criminal case, then that candidate is effectively rendered non-competitive.
Not in a third-world country. :)
Assume he was capable of doing his duties wherever he went, and especially at his residence.
National Review would have liked that when Mann sued.
Yes, civil cases don’t have the same speedy trial guarantees, so they can drag on for quite a while. The criminal docket has priority in scheduling.