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The Coming Trainwreck
A deeply ugly scenario is shaping up. Consider the strong possibility that (a) Donald Trump through sheer petulance and poor judgment, has actually managed to be culpable of obstruction with respect to the May grand jury subpoena and (b) the morally deficient Twitter-slave currently running the Department of Justice under the watchful eye of the malignant buffoon who is currently POTUS is on a desperate course to indict the former president on whatever grounds possible and will do so regardless. Consider the possibility that Trump is guilty but of crimes for which no Democrat would ever be prosecuted.
The likelihood that there is a great risk to national security from the contents of the documents at Mar-a-Lago strikes me as infinitesimally small. Anything of military or strategic value has likely been vacuumed up by Chinese techno espionage, Eric Swalwell’s pillow talk or everyday leaks, embassy parties, and/or old-fashioned bribery. But the left will tell us that Garland saved us from utter disaster at the hands of our enemies. And most irritating of all will be that the mentally challenged who still believe the dossier proved Trump’s collusion with Putin will feel vindicated.
Why did Trump hang onto that material? Even conceding his authority to declassify, the bulk of that stuff is still the property of the archive. If he wanted evidence of the Russiagate hoax, for example, was it not possible to identify and summarize each relevant document and then insist on some secure handling by the archive to prevent surreptitious destruction or removal by the conspirators?
My concern is that Trump’s reasons for hanging onto that material may turn out to be not very cogent, much less exculpatory and it will have needlessly opened him up to his enemies.
The sheer ugliness of the national reaction to such a prosecution, the media gloating, the self-righteous pap from the usual suspects, and the seething rage of the right… It has not happened yet but it already seems tiresome.
I would like to fantasize that in the aftermath of this fiasco, the GOP would respectfully decline to re-nominate a wounded Trump, instead elect a strong replacement with a popular mandate and sizeable congressional majorities and then effect vengeance and even prosecute the swamp creatures to the same measure as those lowlife scum have gone after conservatives in general and Trump affiliates in particular. Would that it were a time of true, slashing defunding of the left with fun side events like stripping security clearance and barring government employment for the 51 “experts” who declared Hunter Biden’s laptop to be disinformation.
But that will not happen. There will likely be a GOP President other than Trump and a GOP Congress but the left will recede only slightly, whine continuously, persist in rhetorical attacks, and somehow impose a near-mandatory amnesia about their crimes and atrocities on the grounds that it would be “extreme” or “divisive” or “partisan” even to point out their foul, recent history much less impose accountability. And Republicans will be too polite and say that they are “looking forward, not backward” and we will limp along until the left launches its next new offensive from their unmolested sanctuaries.
Published in General
Thanks for clarifying. Is there a better hypo that’s more realistic? I tried to create a hypothetical that showed clearly that simply saying something is declassified is only part of the question.
Haven’t read all the comments yet, but two things. We don’t really know what this material was, but it was most likely duplicates and the Archive was denied nothing, almost certainly nothing of substance. And from all the articles I’ve read by lawyers and people with experience in this, the president is legally allowed to keep copies of any documents, and nothing is specifically destined to be the property of the Archive.
POTUS is what is known as the classification originator and, unless these policies have changed since 2019, the classification originator is the only person who can arbitrarily declassify something. An Operator can’t do it, he/she can only classify up to the level that the originator has classified something if the information is coming through the same intelligence channels. All of those markings, i.e., TK-GAMMA//SCI//NOFORN, are trunks through which the intelligence is collected, reported, analyzed, and disseminated. Most of the time those markings are rather innocuous in that they pertain to a particular satellite or a particular HUMINT source, but they do dictate the level of classification. The actual information in the report itself might be something that you could get by reading the newspapers of a certain country. Those coversheets on the floor from that picture would have come from the FBI and not from Trump just taking everything out without looking at them. Although, I have seen the Federal Government do some really careless, stupid stuff with classified. Speaking of which, I wonder if my NSA-net login still works–haven’t used that in nearly ten years.
I would be curious to know how many such documents Obama took when he left office. Ditto for the Bushes and Clinton. I suspect there’s a fair amount. We do know that in the past ex-Presidents have generally continued to receive confidential briefings from time to time, and remain read-in for at least a few years after their term. I recently read that Obama didn’t settle up with the Archives on his papers until 2018. I can’t find the original article to confirm its accuracy, but that sounds about right for any ex-President who’s all done (i.e. two terms).
No there isn’t because POTUS is the classification originator and can declassify as he/she sees fit. NOw that doesn’t mean that the “traditions and norms” aren’t broken and I know that is a huge thing for Nevers, but in reality POTUS could hold a press-conference and just start reading right off of NSA-net if he/she wanted to.
Got it. But he’s not president now and the current administration has a legitimate interest in knowing what’s “out there”. What you say is inarguable if Trump were still president. The calculus changes somewhat now that he’s out of office.
Interesting question: If Biden knew what DJT had at MAL, and accepted that Trump declassified those documents, wouldn’t Biden have the power to re-classify the documents?
I don’t know the answer. I suspect he would have that power, but I really don’t know.
Not necessarily. There is a whole labyrinth of steps one must go through to re-classify something if memory serves. It’s much easier to declassify something as POTUS than it is to classify something, but who knows really in this current climate. I mean honestly, we shouldn’t even be here but for the fact that a political outsider beat the brakes off of Queen Killery.
You are playing by their rules. Obstruction is a non starter. Trump gave them nothing. They made it up.
Not if he took them when he was still President.
In a thread a week or so ago someone listed three statutes that in his opinion were relevant and the basis of this witch hunt we call an investigation. It was dry, lawyerly stuff, but I read a bit of one of the statutes and didn’t see any reference to classification. The word used in referencing documents is “sensitive”. Declassification, as Justin said above, doesn’t make the documents less sensitive. Not being a lawyer, I don’t know the implications, if any.
That does not matter.
The President is not bound by any rules of the Executive Branch. He sets the rules. Sensitive, Classified, Top Secret, no matter what, it does not matter.
Obstruction is therefor a joke. They just got a thank you note for their assistance. Obstruction is now made up. It is working to catch a former President in a procedural trap that they made up. If they push ahead, I predict it will blow up in their faces. Just like every other trap.
You might have noticed that I ignored the usual complaint of people who are working–that taking action could be risky, expensive and hostile. But we have to stop making excuses. For example, if people act hostile toward someone who protests Wokeism, could not a suit be registered for having to work in a hostile work environment? We need to be creative about the actions we can take. Some people hope that wokeism will disappear on its own. Do you want to wait until that happens? Are you so sure it will vanish?
He is not the President anymore. And his declassification prior to leaving the office is irrelevant, IF the statute covers “sensitive” information without reference to classification level.
Standard Disclaimer: I didn’t read the full text of the statute and will repeat that I am not a lawyer.
Side note: When asked about Trump keeping his clearances after leaving office, which I believe had been standard practice, in case advice was needed, Biden laughed and said he didn’t foresee asking Trump for advice.
Or, are they just holding back until a more effective time, like just before the election with no time for a defense to be submitted to the nation?
I think that’s right. The classification issue may come up under some of the statutes because they require “unauthorized” possession, in which case the classification issue may be relevant. But even then, that issue won’t be relevant to all the documents. And it still doesn’t mean he can take them with him, especially if they contain national defense information, etc…
The ‘unitary executive’ defense only goes so far. Even if he can declare something de-classified, he can’t declare personal ownership of it. If he took the furniture from the White House, and a couple of humvees and the Marine one helicopter with him, no one would be defending him by saying, “Well, he’s the unitary executive so he can just give that stuff to himself. Nothing we can do.” Actually, a lot of people probably would defend him by saying that, but that’s another issue.
Then why do they get lifetime Secret Service protection? Don’t those agents belong to the government, so to speak? Wouldn’t Marine One be the same classification? Also, why continue providing former, term limited POTUS’es with security clearances? Those also belong to the government.
(For the record, the fact that private individuals upon leaving the White HOuse get to continue on as though they have been given title is a bit repugnant to me.)
They get SS protection because they still know highly classified info and are a prime target for assassination, kidnap, etc., as are their immediate family. At least that’s my understanding.
Former officials are provided (what I think should be time limited) clearances because their successors may want advice.
At least re: secret service, that’s statutory. Pretty sure that if Congress revoked it tomorrow, there’s nothing the former presidents could do about it. I happen to think it’s money well-spent in our current political climate (both foreign and domestic), but the presidents certainly are not constitutionally entitled to it.
IT does not have to be much. All they need is something that ends with a jail sentence and they can get him in front of a DC jury and jail time is assured.
Ask John Durham, any Jan 6 defendants, or Marc Steyn what happens to people tagged as enemies of the left who come before the court in DC.
They could charge Trump with passing secrets to agents of one of Neptune’s moons and there is a 30% chance of finding a DC judge who would reject a motion to dismiss and a 70% chance of a jury that would vote to convict.
I wish that were true. You keep thinking it is solely about the classification status of the docs. The other side is playing a more complicated game.
For example, the Mueller Hit Squad had squadoosh as to their original purview–there was no collusion and they knew it. The succeeding objective (if they could not find new dirt) was to be so intrusive, so dishonest in media leaks, so vicious towards others caught up in their project that Trump would get angry, cross a line, and then they could charge obstruction.
Even if the predicate investigation is utter crap, obstruction can still be a crime.
That is what I am trying to get across to you. What you call “playing by their rules” does not come with the option of quitting the game or making up your own rules. You cannot tell a prosecutor armed with a federal grand jury subpoena to pound sand because you think (know) he is a partisan charlatan.
Well you can but you need a lot of people behind you willing to “hang together” so that you don’t “hang separately.”
The D.C. Circuit seems to suggest otherwise:
“Since the President is completely entrusted with the management and even the disposal of Presidential records during his time in office, it would be difficult for this Court to conclude that Congress intended that he would have less
authority to do what he pleases with what he considers to be his personal records.
. . .
On a practical level, the possibility of judicial review raises a host of questions. If it is available, why is the PRA entirely silent on the subject? What standard of review would apply? Would there not be a high level of deference accorded to a president’s decision about which records are personal? How could a challenge to a president’s classification decision be litigated without the decision-maker participating as a party to the lawsuit? If a classification decision is reviewable, what is the statute of limitation that applies? And, would that period have expired in this case given that President Clinton has been out of office for over twelve years?
. . .
the Court has seriously doubts about whether the former President’s retention of the
audiotapes as personal is a matter that is subject to judicial review.”
Judicial Watch, Inc. v. National Archives and Records Administration, (D.D.C. March 1, 2012).
As a mentioned to Hoyacon in another thread, even if the records fit the statutory definition in the abstract, there might not be a judicial remedy.
It’s fun to say that no one is about the law, but that simply isn’t true. A Senator can read classified information into the Congressional record under legislative privilege, a Representative can probably blow a stop sign on the way to the Capitol because he is privileged from arrest for a misdemeanor will attending the House, and a drunk Russia Diplomat can run someone down and get away with if because of Diplomatic Immunity. None of these are good in and of themselves, but we let them happen to serve other interests.
This, although possibly dicta, sounds to me like Biden cannot arbitrarily re-classify those docs which Trump declassified without Trump’s input, no?
I agree it is dicta, but if it is correct your implication might be right. In any event, the DOJ should have considered the possibility before invoking the criminal justice system. These matters could be decided via the civil courts if they want to establish precedent.
Another thing worth mentioning is that the Supreme Court has been suspicious of the DOJ in using inventive theories against federal elected officials. In the Bob McDonnel bribery case, they refused to accept the governments theory that a “series of benefits” could substitute for proving an explicit quid pro quo. They didn’t want to criminalize something that could also be described as ordinary politics.
I don’t think that Judicial Watch case would be of much help to Trump. That case involved a suit by Judicial Watch to make NARA take custody, pursuant to the PRA, of certain audiotapes of Clinton being interviewed by a historian.
But if Trump is charged under the Espionage Act, criminal statutes, then the intent of Congress is much clearer – especially with respect to documents and information which represent a grave threat to national security (or whatever the language is – something like that). The PRA’s definition of “personal records,” however vague it might be, is not likely to control the outcome there.
Your point assumes the documents in question are, even arguably, “personal records.” Maybe the seized docs are personal records, but we don’t know that. They may not be.
What compromises the notion that this effort is a tremendously serious matter was the statement insisted on by various Talking Heads on media and by various agency officials that the reaosn ofor the raid was that Trump nefariously held nuclear secrets in his possession.
So if that is the case, why would the FBI wait until April 2022 to convene a Grand Jury?
A traitorous former President with nuclear secrets should be brought to heel within days of such thinking.
So either the NSA, the CIA, and the FBI are inept and didn’t get around to noticing this traitor holding these nuke secrets since late Jan 2021 – which suggests incompetence – or else the nuke secrets do not exist.
I know that the CIA is not supposed to spy on US citizens, but the implication is that Trump holds these secrets to use in collaboration with his good buddy Putin, who whispers sweet nothings in the former president’s ear on a daily basis. The CIA certainly has the right and the duty to spy on Putin. So if the nuke secret thing was real, they would have known about it for a while.
I understand what the case was about; I read it to the end. The Court said what it said. Maybe it’s right, maybe it’s wrong; maybe it’s dicta (maybe it’s Maybelline).
The analysis doesn’t assume that they are arguably anything. A lack of judicial review is a lack of judicial review. The point is the Court might not even consider the argument that they were not. It’s a blind spot of even conservative lawyers to think that everything can or should be handled through the Courts.
And assuming the D.C. Circuit is correct, you seem to be implying that even though the President may have absolute discretion to designate something as a personal record under the PRA, the subsequent administration could ignore that and apply a different statute to criminalize is retention of of them. Maybe, but I give that argument one chance in ten if it makes it to the Supreme Court.
What specifically is proof of Trump’s intransigence?
The more obvious motive the politicized FBI has assigned for Trump was an involvement with Putin. He is a multi billionaire. If he wanted to, he could have bought property in a nation without extradition and fled there a week after he left office.
Had Trump gotten a hold of a list with the names of spies sent here by Red China, he has many contacts and would have seen to it that someone in office currently was offered the list. We have two women in Congress who are conservative firebrands. We also have Senator Rand Paul.
Trump strikes me as someone who loves this country. I can’t see him holding on to a list of names that needs instantaneous release to prevent major espionage from occurring.