At Outside the Beltway James Joyner has posted what I think is a pretty good round-up of legal opinion on some of the issues raised in the op-ed I cited yesterday. He concludes:
Like so many other things related to the Trump presidency, the problem is that the Constitution and laws of the land begin with the assumption that the President of the United States is a fundamentally decent human being who takes his oath of office seriously. There have certainly been Presidents who don’t quite meet those standards but none have been anything close to Trump in their sheer and utter disregard for the rule of law. And so here we are.
I was reminded of this observation by John Adams:
Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.
which I think is worth taking seriously.
The point I was trying to make yesterday is that the law is not a flashing billboard. It is a labyrinth. If you are looking for justice or clarity, you will search in vain.
I do not know what is going to happen in the case against President Trump about the documents he retained in his residence and I don’t think anyone else does, either. If you think it is an open and shut case, you may well be disappointed.
“There have certainly been Presidents who don’t quite meet those standards but none have been anything close to Trump in their sheer and utter disregard for the rule of law.”
Right. (snicker) The selective outrage simultaneously fascinates, disappoints and humors. Ultimately, it cheapens the issue to the level of being a food fight.
Bill Barr made a statement yesterday I’m sure he thought sounded wise and above the fray. “You don’t solve the problem of derogation of duty by looking past the derogation of duties by others.” But it is actually childlike, devoid of any consideration of human nature, especially in a political venue. There is a reason mutually assured destruction exists as a strategy, and not just “but at least I have the intellectual and moral high ground.”
Only some one such as James Joyner, who has a sheer and utter disregard for the truth about Donald Trump, would make such a statement. Perhaps the poor man is confusing charges and accusations with actual illegal behaviours. I believe the observation by Adams about needing a moral population in order for democracy to functions includes journalists. Adams also references the need for such a society to believe in basic Christian values. Not to be confused actual belief in Christ.
It’s an open-and-shut case for any regular person. The only reason it won’t be an open and shut case here is because of politics and – potentially – the success of dubious legal arguments that Trump gets special dispensation as an ex-President.
The first order problem is that the Constitution gives the President the “executive Power,” which includes authorities and privileges that do not derive from Congressional law. Congressional attempts to establish rules in this area are nearly impossible given Presidential veto power, so Congressional law is asserted either without teeth or without addressing applicability to the special situation of the Presidency.
In turn the courts utilize the doctrine of avoidance to first see if they can resolve questions without having to make large Constitutional declarations, which in this case might easily be resolved by finding that Congress failed to be sufficiently specific to criminalize this conduct. I believe there have been at least three SCOTUS decisions this year decided on ‘rule of lenity’ grounds barring prosecution of statutes that were unclear in the situations asserted.
I don’t know what will happen, and agree with Dave that a lot is possible. I don’t know whether Trump’s former lawyers will be allowed to testify at trial. I don’t know if Trump will hire competent lawyers or loyal yes-men. I don’t how much it matters that Trump is a former President. We’ve have two situations recently in which that didn’t appear to matter. A former President was put on trial for impeachment based upon conduct while in office. A former Vice President was granted legislative immunity though very limited in scope. In the latter case, the court recognized that a functional interpretation of the Constitution decides these issue. Pretty certain there is not a bright line here, but a question to be argued over.
So you think the debate will be which presidential powers a president retains after they leave office? I dont think there is anything in the constitution I can think of that would suggest presidential powers and privileges persist after they leave office.
So Drew- Which other president willfully took classified documents, lied about having them and refused to return them?
Steve
We already know that former Presidents can assert executive privilege claims, Nixon was allowed to so by the SCOTUS in the case involving his Presidential papers. Having the right to assert executive privilege (which isn’t expressly mentioned in the Constitution anyway) just led to a balancing test which Nixon lost.
PD Shaw: The first order problem is that the Constitution gives the President the “executive Power,†which includes authorities and privileges that do not derive from Congressional law.
If the president can’t be constrained, then that would mean he could declare the design of a hydrogen bomb to be his personal property, then, on leaving office, legally sell it to whomever wanted to pay for it. In fact, presidential papers are government property. Agency documents are government property. Trump, a private citizen, no longer had a right to keep documents relating to the national security, and he apparently obstructed a court order to return them.
What is the Executive privilege claim that would allow a former President to keep national security information and show it to others who legally aren’t allowed to see it?