You said: If we are talking about the indictment, at least one charge seems to be related to him sharing classified information with people who did not have the right or need to know it after he was no longer president and could not declassify the document in question.
To me, it seems that this article is saying that the act of taking it as President was sufficient to consider it declassified from that point forward.
The question then becomes does the government have the right to ask for it back? If the answer is yes but the former President declines to return it claiming past precedent, is that criminal? I think many people believe it is not criminal (the Presidential Records Act has no criminal charges attached to it), but that it is being levied arbitrarily against President Trump for political reasons.
You said: If there was no record of him declassifying the document while president and the document still contained classification marks, he will have a hard time proving the document was declassified when he shared it...
As I said up-thread:
I'm arguing that if the President uses his plenary powers to declassify something "on the spot," then how would there be a record of it unless this was done post hoc?
It supposes that there is some ritual hand-waving that signifies an overt act of declassifying, that if not done before sharing a secret means that the secret was not declassified before being shared by the President.That is nonsensical thinking. The sharing itself is the act of either declassifying or granting the classified status to the receiver of the information, if you're the President.
That's what it means to be a plenary power.
If the President did this on his last day in office and then took the documents with him, then how would there be a record of it?
Constitutionally, processes for declassification are for lower-level staffers who are delegated the classification powers from the President. The Supremacy clause in the Constitution says that there is no "process" that binds the President on the matter of declassification.
Where it gets murky is when the "process" goes after a President once he leaves office. At that point, he no longer has plenary powers, but it seems to me that the process is being applied ex post facto to President Trump to make criminal what was not criminal when the act occurred. What are your thoughts on this?
-PJ
“ To me, it seems that this article is saying that the act of taking it as President was sufficient to consider it declassified from that point forward.”
I have heard some other people advance this idea, but no one has provided any reference to a law or regulation that provides for this. I read through the PRA and didn’t see anything about it. Perhaps there is a court case that specifies it. If so, I’d love to read it.
“ The question then becomes does the government have the right to ask for it back? If the answer is yes but the former President declines to return it claiming past precedent, is that criminal? I think many people believe it is not criminal (the Presidential Records Act has no criminal charges attached to it), but that it is being levied arbitrarily against President Trump for political reasons.”
If they are personal records, the government does not have a right to ask for them back, but under the PRA, if they are presidential records, the government can ask for them back whether they are classified or not. If there is a dispute between NARA and the former president, it is supposed to be negotiated. No criminal penalties apply. I would agree that trying to use the Espionage Act is completely political and likely to get tossed, hopefully at the preliminary stage of the process.
“ That is nonsensical thinking. The sharing itself is the act of either declassifying or granting the classified status to the receiver of the information, if you’re the President.”
That is true if you are the President, but at the time of the audio recording, Trump wasn’t president, so this would not apply.
“ I’m arguing that if the President uses his plenary powers to declassify something “on the spot,” then how would there be a record of it unless this was done post hoc?”
If the President declassified something without following any procedure, and the question of classification came up while he was still president, all he would have to do is say, “that has been declassified “, and that would be that. Once he is no longer president, if nothing had ever been recorded and the classification were questioned, I don’t think just saying “that has been declassified” would be sufficient. A court might disagree with me.
“ Where it gets murky is when the “process” goes after a President once he leaves office. At that point, he no longer has plenary powers, but it seems to me that the process is being applied ex post facto to President Trump to make criminal what was not criminal when the act occurred. What are your thoughts on this?”
It seems to me from the transcript of the audio that Trump did not believe the classified documents in his possession had been automatically declassified. Besides describing them as “highly confidential” and “secret information”, he also had a discussion about trying to get them declassified. This is what led up to him making the statement that as president he could have declassified them but he no longer could. So I don’t think referring to it as ex post facto - which generally refers to passing a law that criminalizes behavior that took place before the law was passed. That’s not to say they aren’t engaging in selective persecution of Trump, just that the laws they are using, while rarely prosecuted in cases like this, already were on the books.