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I am going to preface this by noting that I am not, nor have I ever have been, a lawyer. I also did not stay at a Holiday Inn last night.
With that out of the way, I was pointed to an article in Rolling Stone today entitled “Trump Tells is Lawyers: Get ‘My’ Top Secret Documents Back.” I skimmed it because frankly, what do they know about any of this? The same that most of us do, and that is not much. What do we know? We know that the FBI executed a search of Mar-a-Lago with a warrant that authorized them to take every document that was created between Jan 20, 2017, and Jan 20, 2021. I have heard some legal eagles claim that this is quite normal and others claim that it would have been laughed out of most judges’ courts. Which side is right? Both, I suspect, but that speaks to another problem with our legal system. We also know that the FBI took things that they should not have, President Trump’s passports being one thing that they took. Hilariously pundits claimed that the FBI would never have taken such items, but then were forced to eat (I mean delete) these words because the FBI really did do that.
The “walls are closing in” crowd is excited that they see an indictment in the works and that Trump will be caught doing what he claimed that Sec. Clinton did, mishandled classified documents and information. One of the few people that I actually trust on such matters noted that the Supreme Court has found that the President is the sole individual who can classify and de-classify information (Dept. of Navy v. Egan). In that case, Mr. Egan lost his security clearance and thus his job and petitioned to have his case reviewed by the Merit System Protection Board, but was denied. As part of the case, there was a discussion about the classification system and who runs it saying:
The President, after all, is the “Commander in Chief of the Army and Navy of the United States.” U.S.Const., Art. II, § 2. His authority to classify and control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position in the Executive Branch that will give that person access to such information flows primarily from this constitutional investment of power in the President, and exists quite apart from any explicit congressional grant.
In effect, the Constitution Article II directly grants the President the authority to classify (and de-classify) information. There isn’t a process that has to be followed, because, as Chief Executive, the President delegates their authority in this manner to the people in the Executive Branch who work for them. The poster who originally shared the article said that nuclear secrets can only be de-classified by the Sec. Energy, which is abjectly wrong if the President is the source of all classification decisions, either directly or through delegation. The podcast that I was listening to noted that other scholars have said that the President doesn’t even have to tell anyone that they are de-classifying something…the very act of directing someone to place documents into a box to remove from the White House does that.
I’m sure that the lawyers will have a field day with this, and I also suspect that it should end up in the courts, eventually the Supreme Court. Once there, I have little hope that a sensible outcome will be reached as the Court seems incapable of dealing with President Trump in a fair an even manner. Upshot for the lawyers is that the ones involved in the case will make a killing, and the lawyers who appear on TV or blog will also make bank on talking and writing about it. Meanwhile, the people who are hoping against hope that President Trump is guilty of something…anything, will point to this and say, as I have also seen, “Trump did what Hillary did, and you wanted to throw her in prison.” Missing the point that Sec. Clinton was the Sec State and not the Chief Executive. But when has that stopped the “closing in” crowd?Published in