‘For Goodness Sake!’: Congressman Jim Jordan Breaks Down Major ‘Flaw’ In Argument Against Trump

House Judiciary Chairman Jim Jordan broke down the major “flaw” in the indictment against former President Donald Trump Sunday on CNN with Dana Bash.

Trump announced the indictment Thursday, ahead of the official indictment being unsealed Friday. The charges against Trump include 31 counts of alleged violation of the Espionage Act or the willful retention of national security information, as well as one count of “conspiracy to obstruct justice,” one count of “withholding a document or record,” one count of corruptly concealing a documents or record,” one count of “concealing a documents in a deferral investigation,” one count of “scheme to conceal” and one count of “false statements and representations.”

“The indictment said: ‘TRUMP directed NAUTA,’ who’s his personal aide, ‘to move boxes before Trump Attorney 1’s June 2 review, so that many boxes were not searched and many documents responsive to the May 11 Subpoena could not be found and were in fact not found by Trump Attorney 1.’ [sic] In plain English, this alleges that Trump instructed his aide to help him remove sensitive documents in defiance of a federal subpoena. A), Does that trouble you? And B) If he thought he had the right to have these documents, why was he trying so hard to hide them?” Bash asked.

“No, it doesn’t bother me because again, you can’t have obstruction of something when there was no underlying crime. The standard is set. The standard is what the Constitution says. The commander-in-chief — the president of the United States — has the ability to classify and control access to information. That’s what the Constitution and the court have said. So you can’t obstruct when there is — you can’t obstruct when there is no underlying crime,” said Jordan.

“And when he was president, he declassified the material. He’s been — he’s been very clear about that.”

“He says point-blank, on tape, ‘As president I could have declassified it. Now I can’t.’ He says, in his own words, it’s on tape as part of this indictment, that he did not declassify the material. Therefore, it is classified.”

“Dana … saying he could have, saying he could have is not the same as saying he didn’t,” Jordan pushed back.

“Now he can’t — right — because he’s not president now. But when he was president, he did declassify it. He said that,” Jordan said.

“Not if he declassified it when he was president of the United States, for goodness sake!”

“But he’s saying point-blank in this audio tape that he did not declassify it,” Bash said. “What you’re saying just doesn’t make sense on its face.”

“Dana, what this truly is, Dana, is an affront to the rule of law. It’s an affront to consistent application of the law. You have Secretary Clinton — who had classified material on a server — she was not president of the United States. She was Secretary Clinton. You have that happen, nothing happens to her,” Jordan continued before the duo moved on to other issues.

Bash was referencing was a July 2021 call which alleged Trump showed a “plan of attack” to a writer, a publisher and two staffers, which he said was prepared for him by the Department of Defense, according to the indictment. “As president, I could have declassified it,” Trump allegedly said at the time, and “now I can’t, you know, but this is still a secret.”

The ruling you’re trying to use to validate your position deals with “documentary records,” as opposed to “Presidential Records.” That’s where the distinction lies.

Agency records—materials created by DoD, CIA, NSA, etc,—are defined in the Presidential Records Act as “Presidential Records.”

NARA put out a press statement in the last year, and I don’t have a hard time imagining that they had a team of lawyers that used a metaphorical lice comb on it before they released it. (CAPS emphasis is mine)

“The PRA also requires that all DOCUMENTARY MATERIALS “be categorized as Presidential records or personal records upon their creation or receipt and be filed separately.” 44 U.S.C. 2203(b). THE PRESIDENT DOES NOT HAVE THE DISCRETION TO CATEGORIZE A PRESIDENTAL RECORD AS A PERSONAL RECORD.”

https://www.archives.gov/press/press-releases/2023/nr23-016

The audio tapes in the Clinton sock drawer (not created by governmental agencies for use by the President for use in constitutionally described duties) were “documentary materials” and as such were required (under the PRA) to be designated either “personal” or “Presidential” when they were created, and yes the ruling you cited gives him sole discretion to do so.

The documents listed in the indictment do not fall into that category. These documents are “agency documents” and according to the PRA are automatically “presidential records.” As we see in NARA’s press statement,

“The President does not have discretion to categorize a Presidential record as a personal record.”

This is why the ruling your citing doesn’t apply to this situation.

I’d like you to consider this: There is absolutely no point to the Presidential Records Act AT ALL if any president can just automatically claim that every piece of paper from his/her administration is a “personal record.”

Think also about this: if your interpretation is correct, and he’s LEGALLY entitled to whatever he walks away with, then his course of action would have been to challenge the subpoena demanding all documents w/ classification markings. If your interpretation is correct, it would have been a slam-dunk case.

We all know he didn’t do that. Why not?

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.