There were a couple of things I wanted to remark on yesterday but never got around to. The first is the ongoing kerfuffle around the search of Donald Trump’s residence in Florida. These are observations I have made before but they bear repeating in this context.
I have no problem with President Trump being prosecuted to the full extent of the law but it’s not entirely clear to me that he has broken any law here. There is a document being circulated, a blanket declassification of all documents taken by Trump to his residence. If genuine it would seem to defuse the charges being leveled at him regarding mishandling of classified documents. Even if reclassified by President Biden it doesn’t seem to me there’s anything prosecutable there (no ex post facto laws).
Furthermore I have already expressed my view that searches of the residences and private offices of former presidents should be routine and IMO that should be codified into law. That would defuse charges of selective or partisan enforcement.
Finally, AG Garland had better have some specific charges to level against the former president. If he doesn’t the complaints of persecution by the FBI would seem to have some merit.
I have also expressed the view that the FBI should have been abolished long ago. At this point every executive agency has its own armed enforcement unit, in many cases their own SWAT teams. In that context it isn’t entirely clear what purpose the FBI serves.
Its bizarre that a president could just give a blanket declassification. I would be surprised if that has ever been done. Regardless, even if that stands (that’s one for the lawyers* to sort) I dont think that means all fo the documents necessarily get to be kept in a non-secure location.
I think there is a difference in declassifying something because you need to do that to conduct talks or convey information to tother world leaders or non cleared Americans and declassifying stuff just so you wont be accused of taking classified documents when you leave. I am betting this will be difficult since my sense is that not all fo this is codified well and assumed that POTUS would be acting within accepted norms.
Steve
some specific charges to level against the former president—-
Lack of was never an impediment for the Mueller team.
“Its bizarre that a president could just give a blanket declassification. I would be surprised if that has ever been done.”
It is bizarre, and I don’t think it’s ever been done. There have been times when normal security procedures are reduced or relaxed for various reasons but that is different from locational declassification. But there are a lot of weird things in the system. A President can release something to the public or a foreign nation or a select group of people without security clearances and still keep it classified. Intel people like me have long rolled our eyes at prohibitions levied on us that we are not allowed to confirm or deny what a President might have released. In the early part of my career we were forbidden from even acknowledging that the US has spy satellites despite everyone knowing that we did. We were also warned that possessing Wikileaks material or other public dumps of classified material was not authorized and would, at a minimum, threaten our security clearances. A colleague of mine was formally reprimanded for clicking through to a few Wikileaks documents while doing OSINT research. The tech people wiped his government computer and ran scans on the unclass network to ensure that none of those documents existed on the network.
Lots of bizarre stuff.
Still, as I’ve been arguing for some time now, the President has plenary authority here. The system of classification exists by EO and subordinate guidance. Its purpose is to operationalize, manage and administer this authority across the massive Executive bureaucracy. A lot of people seem to think this classification bureaucracy sits apart on its own and that a current sitting President is subject to it. In my view, that would be the tail wagging the dog, and it’s pretty obvious this is not the case. In theory, a President could rescind the EOs that govern the classification system – at that point, the system ceases to have any legal basis. Or the President could, at any time, fundamentally alter the system and do so without oversight or input from Congress. The system exists to serve the Presidential authority, not the reverse.
But the courts could rule that the President is subject in some limited way to the rules of the bureaucracy that serves the office but this hasn’t – to my knowledge, ever been tested.
In some ways, this is similar to the pardon power, which is exclusive to the Executive. The notion that President can self-pardon is also bizarre but there’s nothing in the Constitution to say that isn’t allowed.
Over the years, I’ve noted that Congress can certainly take a more active role in the classification system, or at least try. They’ve done that (or rather, did that long ago) when it comes to some types of nuclear-related information. The point is, if one doesn’t trust future Presidents with plenary power, then Congress ought to start working to restrict that power or at least claim oversight authority.
All that you say, Andy, may be true, but its just an observation that governmental entities adhere to, or don’t, rules on an ad hoc basis.
The real point is hypocrisy and selective enforcement based upon party affiliation, which has been taken to the absurd the last 6 years. That’s called politicization and is the root of crumbling faith in institutions.
As I understand the rules, POTUS doesnt get to just cart away whatever documents he wants, classified or not. The archives people need to see them first. Also, as I understand it, the authority to declassify lies in the office, not the person. Papers could be declassified for any reason that meets the whim of a current officeholder, but the following one could consider them classified. If the current holder made them public it would be moot but if they had not I would think they could be pulled back. Something for the lawyers.
Steve
https://nypost.com/2022/08/09/fbi-trump-raid-exposes-washingtons-secrecy-shams/
â€Obama White House lawyers repeatedly invoked the Presidential Records Act to “delay the release of thousands of pages of records from President Bill Clinton’s White House,†Politico reported. At the end of his presidency, Barack Obama trucked 30 million pages of his administration’s records to Chicago, promising to digitize them and eventually put them online — a move that outraged historians.
More than five years after Obama’s presidency ended, the National Archives webpage reveals that zero pages have been digitized and disclosed. People can file requests via the Freedom of Information Act (a law Obama helped wreck) to access Obama records, but responses from presidential libraries can be delayed for years, even more than a decade, if the information is classified.â€
There definitely seem two distinct rules for documents/personal effects taken by former presidents once they leave office. When it relates to anything Trump-oriented, the book is thrown open and legal darts are legitimized by the now compromised DOJ, FBI and other bureaucracies once considered non-partisan.
IMO, the public feedback from this obnoxious transgression might be of benefit by liberating us from an administration attempting to gradually convert this country into a police state. Awareness is a powerful antidote to such incremental governmental overreach.
BTW, lots of spontaneous rallies are taking place across the country, in places like AZ, NJ, FL, NY, indicating support for Trump and calls for defunding the FBI.
That’s true but, due to the Constitutional bar on ex post facto laws, it would not be actionable.
Her eis wha true National Archives said about Obama’s papers.
The National Archives and Records Administration issued a statement Friday in an attempt to counter misstatements about former president Barack Obama’s presidential records after several days of misinformation that had been spread by former president Donald Trump and conservative commentators.
Since the FBI search of his Florida home and club this week for classified documents, Trump has asserted in social media posts that Obama “kept 33 million pages of documents, much of them classified†and that they were “taken to Chicago by President Obama.â€
In its statement, NARA said that it obtained “exclusive legal and physical custody†of Obama’s records when he left office in 2017. It said that about 30 million pages of unclassified records were transferred to a NARA facility in the Chicago area and that they continue to be maintained “exclusively by NARA.â€
Classified records from Obama are kept in a NARA facility in Washington, the statement said.
“As required by the [Presidential Records Act], former President Obama has no control over where and how NARA stores the Presidential records of his Administration,†the statement said.
Dave- Might not be actionable in terms of prosecution but they could insist on having them back. The papers belong to the presidency, not to the president. Everything is supposed to be approved for release by the Archives anyway.
Steve
Dave Schuler: There is a document being circulated, a blanket declassification of all documents taken by Trump to his residence.
So, if the president takes the nuclear launch codes with him when he goes home, as would obviously happen, they are automatically declassified and subject to FOIA? Seriously? Where is this “blanket declassification”?
Andy: Still, as I’ve been arguing for some time now, the President has plenary authority here.
Congress has regulated certain categories of information, including nuclear defense information. Nor does it matter if the information is marked classified. It’s covered under laws concerning defense information, and under laws concerning government property. Citizen Trump had no legal right to possess it.
Andy: In some ways, this is similar to the pardon power, which is exclusive to the Executive.
While the president has broad powers to pardon, he is still subject to laws against bribery or obstruction, for instance. While the president is the ultimate authority on classification, he can’t declassify in his mind. There’s a regulatory process that has to be initiated, and that takes a presidential order, not a president making it up after the fact.
https://www.nbcnews.com/politics/white-house/trump-s-tweet-total-declassification-russia-docs-not-order-white-n1244022
“I didn’t take the documents, but if I did take the documents, they weren’t classified, and if they were classified, then they were planted, and if they weren’t planted, I declassified them, and if I didn’t declassify them, then it’s a hoax,” Scarborough said. “If it is not a hoax, Obama did it.”
Andy: In the early part of my career we were forbidden from even acknowledging that the US has spy satellites despite everyone knowing that we did.
Sure. It’s called deniability. Some of the information found in Clinton’s emails was discussion of drone strikes in foreign countries. This was considered classified — even though it had been reported in the New York Times.
Andy: The system of classification exists by EO and subordinate guidance. Its purpose is to operationalize, manage and administer this authority across the massive Executive bureaucracy.
That’s right. Classification is an administrative act. You can be punished administratively for mishandling classified information, such as losing your job, but it is not itself a crime. To prove a crime, the government has to show that the information is relating to the national defense and that the act was intentional.
Dave Schuler: it’s not entirely clear to me that he has broken any law here.
Trump was subpoenaed for the documents. Trump’s own lawyer told the government he didn’t have classified documents. From reports, the documents are relating to the national defense, Trump was made aware that the documents are relating to the national defense, and he apparently acted willfully to conceal his possession of the documents from the government.
Zachriel,
“There’s a regulatory process that has to be initiated, and that takes a presidential order, not a president making it up after the fact.”
Where is this requirement codified? Please be specific. What authority requires the President to follow this regulatory process?
After all, Trump decided to tweet a classified satellite image. He didn’t need to go through any regulatory process or issue a presidential order.
So why is an order required for some things and not others, and can you please point out where it lists what actions regarding the classification system require a Presidential order and which ones do not?
In short, you keep admitting the President has plenary authority on a whole host of matters, but then you claim he doesn’t when it comes to declassification. You need to show your work here.
“Some of the information found in Clinton’s emails was discussion of drone strikes in foreign countries. This was considered classified — even though it had been reported in the New York Times.”
That is a funny characterization. What was actually going on is that Clinton was approving drone strikes via her private system. In other words, she was “discussing” impending kinect covert operations on a completely insecure system. I’m pretty sure that wasn’t in the New York Times.
Andy: What authority requires the President to follow this regulatory process?
It’s not the president that has to follow the regulatory process, but the government bureaucracy. That’s because classification is a bureaucratic process. See Executive Order 13526. The president can change the process, but that requires that he order a change.
Andy: After all, Trump decided to tweet a classified satellite image.
The tweet doesn’t necessarily mean the image is not classified. As you pointed out, just because something is publicly known doesn’t mean it can’t be classified.
Andy: In short, you keep admitting the President has plenary authority on a whole host of matters, but then you claim he doesn’t when it comes to declassification.
The president has to explicitly order declassification. It’s not implicit. And even then, there is a process that the government must take to declassify. Keep in mind that the classification system is intrinsically bureaucratic. And as noted in our previous comment, it’s not a crime in itself to mishandle classified information. It is a crime to intentionallly mishandle defense-related information or to improperly take government documents.
Andy: What was actually going on is that Clinton was approving drone strikes via her private system.
“Some of the emails were then forwarded by Mrs. Clinton’s aides to her personal email account, which routed them to a server she kept at her home in suburban New York when she was secretary of state, the officials said.”
https://www.wsj.com/articles/clinton-emails-in-probe-dealt-with-planned-drone-strikes-1465509863
Internet email is inherently vulnerable; state.gov emails are not an exception.
Andy: What was actually going on is that Clinton was approving drone strikes via her private system . . . I’m pretty sure that wasn’t in the New York Times.
It wasn’t in the Wall Street Journal either, which was the source of the report.
“The president has to explicitly order declassification.”
Again, show me where exactly the President is required to do this.
And then you say:
“It’s not the president that has to follow the regulatory process, but the government bureaucracy. ”
Yes, declassification is a regulatory process, and the president doesn’t have to follow it, which is my point. You are insisting that the President is required to follow the regulatory process via an order for declassification but seemingly nothing else.
Look, you have to separate two things, which are the inherent authority of the President and the bureaucracy that operationalizes it.
When you claim that the President is required to give an order to declassify something that is a requirement of the bureaucracy, not a requirement limiting Presidential authority.
The bureaucracy is definitely designed to work in a certain way and is set up to assume that a President will utilize the bureaucracy as it was designed. And as it is designed, it needs and expects a President to exercise his authority through the existing regulatory processes. It cannot cope with a President like Trump, who much prefers to exercise his authority on his own terms regardless of what the bureaucracy wants or is designed to do.
The bottom line is that regardless of what the bureaucracy expects or was designed to do, the President’s authority to classify, declassify, or disseminate any information he wants to anyone he wants is not subjugated to that regulatory process.
That said, going outside the regulatory process does create a paradox in which the bureaucracy will still consider the information classified, but the president will not. The question then becomes how is that paradox reconciled.
“Internet email is inherently vulnerable; state.gov emails are not an exception.”
Yes, even if she had used the State Department’s unclassified system, it still would have been a serious problem and a violation. The use of private email just made it worse.
I should hasten to add that I don’t think this excuses Trump’s behavior, and I don’t believe for a minute that any of his justifications are other than ex-post-facto excuses. The point in all this is simply to show that getting Trump criminally charged with possessing classified information isn’t a slam dunk and that prosecutors would have to prove that he didn’t, in fact, declassify it as he claims he did.
But much of this is OBE at this point since it seems the feds are not going after Trump for mishandling classified info and are focusing on other statutes. To me, that indicates the classified info case is weak.
Andy: Again, show me where exactly the President is required to do this.
Because if he doesn’t, the bureaucracy doesn’t know to remove its classification. Classification is a bureaucratic process. *
* The exception is nuclear secrets, which are statutorily defined.
Andy: You are insisting that the President is required to follow the regulatory process via an order for declassification but seemingly nothing else.
As classification is bureaucratic, you have to issue the order. If you go by the “Trump wishes it in his mind so it is so,” theory, then no one can possibly know what is classified and what is not.
Andy: The question then becomes how is that paradox reconciled.
In ambiguity. No one can be held to account. Classification would no longer exist.
In any case, the warrant had nothing to do with whether the documents were classified or not, but whether they were defense-related or not, and whether they were government records or not. Even if you accept the immaculate declassification of Trump muttering to himself on the toilet, if they were classified at the time, they are clearly government records.
Trump has no legal right to keep government records, especially those that relate to the national defense. If he willfully avoided disclosing his possession of such documents, then he could be prosecuted.
Andy: To me, that indicates the classified info case is weak.
Because classification doesn’t create the crime. It implies, but does not prove the information is relating to the national defense.
“To me, that indicates the classified info case is weak.”
I agree. Its not so much that the case is weak but that the rules for POTUS declassifying stuff are kind of vague. It was never foreseen that some POTUS would claim anything they took with them was automatically declassified. Bizarre that any POTUS would do that but that’s the kind of person who got elected.
Steve
An Ex-POTUS under constant fire from the left, put through unwarranted investigations fueled by FBI lies, falsified FISA warrants, and corruption, with files over-classified and heavily redacted in order to hide and obfuscate what they didn’t want him know…..creating a general declassification order over documents removed is one way to protect his back from the lopsided justice rendered under a democrat anti-Trump-crazed administration.
Trump was already working with National Archivists, like former presidents have done in the past, when sorting thru classified and declassified items, via negotiations in what would be returned or kept. The historic glaring difference in the treatment of past ex-presidents is that no ex president’s private residences were raided, ransacked, with warrants covering the entire tenure of a presidency with no lawyer oversight allowed, personal residential places being breeched and personal belongings confiscated. And, while Trump has requested everything generating this over-zealous DOJ/FBI action be publicly shown, the affidavit has so far been sealed at the request of the DOJ, for reasons that it’s public viewing might jeopardize their “criminal†investigation. The fly in the ointment of this lie, is that their original reason for the raid was centered on finding evidence indicating a violation of the Presidential Records Act – a “civil†matter, not a criminal one. Like the vengefully contrived Russia fiasco, the current pursuit of Trump is from the same cloth of evil resistance sewn into the dem’s never-ending attempts to put a stake initially through the Trump presidency, and now through the possibility of Trump becoming a candidate in 2024.
Jan: creating a general declassification order over documents removed is one way to protect his back from the lopsided justice rendered under a democrat anti-Trump-crazed administration.
So, if Trump takes the nuclear launch codes home, which is something that will certaom;u happen, they would become declassified and subject to FOIA. We’d like to see documentation of that order.
Jan: Trump was already working with National Archivists, like former presidents have done in the past, when sorting thru classified and declassified items, via negotiations in what would be returned or kept.
Citizen Trump can’t keep records relating to national defense. Trump can’t keep records even if he declassified them, because they are clearly government records. His own attorney stated, in writing, that Trump no longer had any records marked classified, which is false.
Jan: And, while Trump has requested everything generating this over-zealous DOJ/FBI action be publicly shown, the affidavit has so far been sealed at the request of the DOJ, for reasons that it’s public viewing might jeopardize their “criminal†investigation.
That’s standard procedure. If it goes to trial, then the defendant will have a right to disclosure. But no one has been charged.
Jan: The fly in the ointment of this lie, is that their original reason for the raid was centered on finding evidence indicating a violation of the Presidential Records Act – a “civil†matter, not a criminal one.
The warrant indicated probable cause of violations of three criminal statutes.