Posted on 06/10/2023 8:47:52 PM PDT by pangaea6
Go back and reread the linked article and see that it is the position of the article (with citations), I'm just articulating it.
From the end of the article:
Our rulingHowever...Risch said, "The minute the president speaks about it to someone, he has the ability to declassify anything at any time without any process."
We found broad agreement that a president, using powers granted by the Constitution, is able to declassify essentially anything. However, experts added that Risch’s comment was not entirely on point for the particular situation involving Trump.
In this case, it appears Trump didn’t actually use his declassification power before talking to the Russian officials...
"There’s no question that the president has broad authority to declassify almost anything at any time without any process, but that’s not what happened here," said Stephen I. Vladeck, professor at the University of Texas School of Law. "He did not, in fact, declassify the information he shared with the Russians, which is why The Washington Post did not publish that information." Instead, Vladeck said, Trump "took it upon himself to authorize officials from a foreign government to receive classified national security information...
So there are two sides of the coin being discussed. One is declassifying a document; the other is keeping the document classified but giving someone clearance to see it. The article suggests that President Trump did both.
let’s postulate a scenario here. The President decides to declassify a document, but never makes a record of that decision or informs anyone. Subsequently, a subordinate is charged for sharing that document because no one knows it was declassified. In that case, the president could just say “ I declassified that document on this date” and that would be that. No further questions necessary. It’s not an issue of questioning whether the president had the right to declassify, but determining if he declassified the document.
First, we have to clarify the terms of the scenario. Is the President mid-term in office? The current Trump situation is that he says he declassified the documents on the way out and took them. Your hypothetical scenario seems to imply a case where he declassified with time to go in his term. I'd question that scenario by asking whether President Trump would notify at least his Chief of Staff that he is declassifying the document if he still had months or years remaining on his term. Do you know of other documents that remained in the archives that President Trump claims to have declassified but appear to remain classified that would suggest this as a viable what-if?
Now change the scenario a bit. The president declassified a document but never documented it nor informed anyone. All copies of the document still are marked as classified. The president leaves office, and months later one of his aides shares the document and is arrested for sharing classified data. The ex-president then says, “oh, I actually declassified that last year.” Without some way of verifying that, I doubt that would be accepted at face value.
Same as above. The basic question is what is the underlying reason for declassifying something? Most people (including President Trump, IMHO), take secrets seriously and don't just declassify casually like they're getting a can of soda from the fridge. There has to be a purpose.
I think President Trump truly felt humbled and honored to have been elected President because he loved the country so much and hated what he was seeing happening to it by the elite ruling class. I think he took his powers of office seriously and wouldn't willy-nilly and haphazardly declassify documents. On those terms I would dismiss hypotheticals based on those assumptions.
I do think that President Trump was surprised at how much of DC turned on him simply for winning. I think he was surprised by the lack of support that he got from his own party leaders. I think he was surprised by the back-stabbing he got from his own appointed staff members. I wouldn't be surprised if he amassed some evidence of people conspiring to undermine him in one way or another. I wouldn't be surprised of some of these documents were classified as "related to national defense" or "national security," but those are just dog whistles for "threats to Democrat party rule.
-PJ
First, the scenarios I proposed were not Trump specific, which is why I said “president” and “ex-president”. I wanted to address the general principle rather than the individual.
Second, most of what the article is discussing the classification authority in relation to a sitting president. It tries to extend that to a president leaving office, but I don’t find it persuasive. And honestly, I hope that position is never accepted as correct.
Let me explain why with another scenario. Let’s assume Trump used this as a defense and was able to get an expedited hearing by SCOTUS, and just prior to the election, SCOTUS agrees - any classified information the departing president takes with him is automatically declassified. Trump wins the election! On January 20th, Joe Biden packs up truckloads of sensitive confidential data that China, Ukraine and other countries would love to get their hands on. On January 21st, he sets up shop selling the information to the highest bidder - and there is not a thing anyone can do, because according to the premise you proposed, everything he takes is declassified and belongs to him. He even gives a big chunk to Hunter to set up his own shop selling the data - since the data is declassified, there can be no prohibition on him doing so.
Do you see the problem?
Can you please clarify:
A President leaving office or a President who has left office?
I agree with you that once out of office, a President does not have the power to declassify documents. Is that what is being alleged about President Trump? I don't think so.
As to a President who is leaving office, he retains his powers until 11:59:59 on January 20. Are you saying that you don't accept the position that a President can declassify documents up to that moment?
Regarding your scenario, declassified yes, "belongs to him," no. For your scenario to happen, American would have had to elect a scoundrel, meaning that the entire campaign and election process, plus a term or two of Congressional oversight, has failed to discover the true nature of such a scoundrel. Besides, your scenario is treason, whether in or out of office and would be treated as such.
-PJ
“ As to a President who is leaving office, he retains his powers until 11:59:59 on January 20. Are you saying that you don’t accept the position that a President can declassify documents up to that moment?”
I agree that he retains that ability until the moment he leaves office. I don’t agree that the mere fact of him leaving office with classified documents renders them declassified.
“ Besides, your scenario is treason, whether in or out of office and would be treated as such.”
My scenario is only treason if he sells to an enemy. Legally, a country is only an enemy if we are in a state of war with them. We are not in a state of war with China or Russia. I don’t even think we are in a state of war with Iran. So what could they be charged with? The information is no longer classified, so they can’t be charged with revealing state secrets.
And you don’t think Biden and his family are scoundrels?
Also, if you agree that the documents don’t belong to the former president, then they belong to the government. Refusal to return them could be considered theft of government property, right?
I believe the Presidential Records Act separates "Presidential records" from "government records."
I read somewhere (today) that a President has permanent access to their own presidential records, and can designate anyone as a representative to handle them, too.
So the question comes down to whether the documents in question were presidential records. I think President Trump says they were, the DoJ says they're not.
-PJ
The entire case is a politically driven farce. If you are getting your hopes up of a conviction, you are setting yourself up for disappointment.
The same goes for any hopes this would damage Trump politically.
Actually, the PRA separates Presidential records from personal records. Presidential records under the PRA ARE government records. The former president and/or a designated representative have access to them, but they belong to the government.
I agree that the case is politically driven. But people have been making claims that are inaccurate or at least very questionable about the law and Constitution and seem to be setting themselves up for disappointment when rulings don’t go their way.
Ultimately I think the court will find that he PRA controls the issue of presidential records and the espionage charges will get tossed. It’s the process crimes where I think Trump may have more exposure - hiding documents from a subpoena, falsely certifying that all documents had been turned over, having boxes removed so they could not be searched for documents responsive to the subpoena, etc. Even if the PRA is the controlling authority, once the subpoena was issued and upheld, attempting to circumvent or avoid compliance is its own crime, though usually contempt of court. There are defenses Trump can raise - since disputes under the PRA are a civil matter, should failure to comply with the subpoena be obstruction or contempt? Unfortunately, it may take getting to an appeals court to win that argument, which means Trump could get convicted before any ultimate vindication.
Since the Archive was never entitled to those documents, there is no charge for obstruction. What would it be - obstructing them from getting something they never had a right to in the first place?
That’s on top of them running to a favorable DC court to get an indictment before then going to the Florida court where everything took place. They were rightly worried they’d never get an indictment if they went to the correct Florida court to begin with.
On top of the rest, their entire case is based on attorney client privileged information that should be tossed out on first amendment grounds.
The only precedent in this is the Clinton Sock Drawer case in which the judge ruled for Clinton and said the President could take any documents he wanted to.
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