Below is my column in USA Today on the diminishing role of Attorney General Merrick Garland at the Justice Department after a series of controversies. As a well-known moderate, many of us had hoped that Garland could be a unifying presence at the Department; assuring a divided nation that justice would be pursued in an even-handed and apolitical fashion. Yet, in controversy after controversy, Garland has failed to take modest steps to make such assurances. After well documented cases of bias and false statements by FBI and DOJ officials in past investigations, there was a clear need for greater transparency and independence in investigations. Garland has consistently swatted away such options. This week, Garland stayed on that path and refused to release any part of the affidavit used as the basis for the search of Mar-a-Lago. This included the possible issuance of a redacted copy or even responses to specific concerns over the timing or basis for the search. While Trump has called for the release of the affidavit, Garland will not even release those sections dealing with the account of the prior discussions and agreements with the Team Trump. There is little proactive effort to anticipate or address such concerns as vividly shown in the last week.
Here is the column:
In the cult classic, “The Incredible Shrinking Man,” the character Scott Stuart is caught in a thick fog that causes him to gradually shrink to the point that he lives in a doll house and fights off the house cat. At one point, Stuart delivers a strikingly profound line: “The unbelievably small and the unbelievably vast eventually meet — like the closing of a gigantic circle.”
If one image sums up the incredibly shrinking stature of Attorney General Merrick Garland, it is that line in the aftermath of the Mar-a-Lago search.
Two years ago, I was one of many who supported Garland when he was nominated for attorney general. While his personality seemed a better fit for the courts than the Cabinet, he is a person with unimpeachable integrity and ethics.
If there are now doubts, it is not about his character but his personality in dealing with political controversies. Those concerns have grown in the past week.
In the aftermath of the FBI’s search of former President Donald Trump’s home in Florida, much remains unclear. The inventory list confirms that there were documents marked TS (Top Secret) and SCI (Sensitive Compartmented Information) —two of the highest classification levels for materials. The former president’s retention of such documents would appear to be a very serious violation.
However, the status of the documents is uncertain after Trump insisted that he declassified the material and was handling the records in accordance with prior discussions with the FBI. While the declassified status of these documents would not bar charges under the cited criminal provisions, it could have a significant impact on the viability of any prosecution.
I have not assumed that the search of Mar-a-Lago was unwarranted given that we have not seen the underlying affidavit. Yet in another controversy, Garland seemed largely reactive and rote in dealing with questions over bias or abuse in his department.
In his confirmation hearing, Garland repeatedly pledged that political considerations would hold no sway with him as attorney general. Yet, in just two years, the Justice Department has careened from one political controversy to another without any sign that Garland is firmly in control of the department. Last year, for example, Garland was heavily criticized for his rapid deployment of a task force to investigate parents and others challenging school boards.
When Garland has faced clear demands for independent action, he has folded. For example, Garland has refused to appoint a special counsel in the investigation of Hunter Biden. But there is no way to investigate Hunter Biden without running over continual references to President Biden.
By refusing a special counsel, Garland has removed the president’s greatest threat. Unlike the U.S. Attorney investigating Hunter Biden, a special counsel would be expected to publish a report that would detail the scope of the Biden family’s alleged influence peddling and foreign contacts.
Likewise, the Justice Department is conducting a grand jury investigation that is aggressively pursuing Trump associates and Republican figures, including seizing the telephones of members of Congress. That investigation has bearing on the integrity and the status of Biden’s potential opponent in 2024.
The investigation also has triggered concerns over the party in power investigating the opposing political party. It is breathtaking that Garland would see no need for an independent or special counsel given this country’s continued deep divisions and mistrust.
Democrats often compare the January 6 investigation to Watergate but fail to note that the Watergate investigation was led by an independent counsel precisely because of these inherent political conflicts.
Then came the raid. While Garland said he personally approved the operation, he did little to help mitigate the inevitable political explosion. This country is a powder keg and the FBI has a documented history of false statements to courts and falsified evidence in support of a previous Trump investigation.
Yet, there was no prepared statement or response for days, which allowed speculation and rage to grow. When Garland did respond, he offered a boilerplate defense of the department and sought only the release of the warrant and inventory list.
If there was one occasion for total transparency, including the release of the FBI affidavit, this was that moment. Yet, Garland refused to act further. He declined to seek the release even as news media reported an array of leaks from the Justice Department, including the allegation that Trump took nuclear weapon secrets to Mar-a-Lago. As his department leaked like a sieve, Garland withheld the document that would set the record straight.
The Justice Department also reportedly refused to allow a special master to review the seized material after alleged attorney-client material was taken — a move that would have addressed concerns that the search was “pretextual” to seize January 6th evidence.
Despite this record, I do not view Garland as inherently political in contrast to predecessors like Eric Holder. Garland’s judicial temperament may be ill-suited to the demands of this office.
Garland sometimes looks more like a pedestrian than a driver on decisions in his own department. Top positions were given to figures denounced as far-left advocates on issues from defunding the police to racial justice. For the moderate Garland, these did not seem like natural choices. Neither did the department’s recent controversial move to effectively circumvent a Trump pardon to prosecute a Florida nursing home operator.
And Garland has not responded to new allegations of bias at the FBI and Justice involving the downplaying of evidence involving the Hunter Biden laptop controversy.
Concerns also have been raised about the decision to appoint the special agent in charge of the FBI’s Detroit office to lead the Washington, D.C., office. The agent, Steven M. D’Antuono, led the disastrous investigation of the alleged plot to kidnap Michigan Gov. Gretchen Whitmer. Many observers viewed that case as clear entrapment and abuse by the FBI. Given the importance of the January 6 investigation, it is baffling that the Department of Justice would make this controversial transfer at this time.
An attorney general should not be motivated by optics in his decisions, but he also cannot ignore optics when they undermine the integrity of his department. The search of Mar-a-Lago was a historic raid with sweeping political implications, including on the approaching midterm elections. Garland must have known that it would be viewed by many as an “insurance policy” taken out against a Trump presidential run.
Yet, with leaks coming out of his department undermining Trump’s claims, Garland merely offered “trust us we’re the government” assurances while resisting the release of the affidavit.
When Scott Stuart faced his diminished stature, he asked, “I was continuing to shrink, to become… what? The infinitesimal? What was I?” That is a debilitating question for any person, but it is disastrous in an attorney general.
It is not that Merrick Garland is absent but that his presence often seems immaterial.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors. Follow him on Twitter: @JonathanTurley
484 thoughts on “The Incredible Shrinking Merrick Garland”
..for a man whose record was virtually the same as Kavanaugh’s most of the time…. what has gotten into this once ‘moderate’ to suddenly become a pawn for the radical Left Deep State……………..?
ATS, I see you keep trying to cover your tracks of lies and deceit by posting under an address that you know will be deleted. That shows how you are unable to use words and have to rely on trickery. Your anonymous name and icon are not enough to prop you up. Neither is an alternate name that makes statements Anonymous the Stupid doesn’t ever want to be associated with his anonymous persona.
Trickery is all you know.
ATS are you going after the people that help you have a voice on the net? That is ridiculous.
Very poor retort ATS, you have no imagination
Very foolish statement by ATS self-deleted. It’s one of his default statements when he gets tongue tied.
“Although its two weeks shy: If someone is still interested to LEARN about classified information from the eyes of “The Atlantic”
And what you’ll learn, of course, is that the Atlantic and their staff writer, Graeme Wood, are serious sufferers of TDS and masters of supposition. Our Grand Inquisitor wanabe enlightened us with this wonderfully subtle bit of innuendo:
“If Trump was keeping nuclear secrets in the storeroom of his country club, without even the benefit of a padlock, and resisted attempts to secure those secrets against infiltrators and spies, a prosecutor might reasonably take more interest. After all, he’s the ex-president, not the pope.”
IF he was keeping them?… No Trump’s not the Pope but then neither is the Atlantic despite its haughtiness, And what we know for sure — and oddly ignored by the bleating of this author — is two-fold. First, the government waited weeks to seize this supposedly top secret, existential threat bearing, gonna kill us all of it gets out nuclear code information that despite the statement of the author was under lock and key and second, that nuclear code information is as ephemeral as the morning dew changing periodically to protect its secrecy. Thus Ike’s nuclear codes aren’t particularly threatening to anyone not writing for the Atlantic and thus by definition with more than half a brain.
So excuse me for not assigning holy writ status to the words of a liberal rag that once piously and measuredly informed us that “[Trump] poses a threat to our collective existence” (Oct. 2020) and that “we are engaged in a serious debate about whether the president of the United States is a Russian-intelligence asset.” (Oct. 2016). Uh, your Omniscience just took a beating there Editor-in-Apoplexia Goldberg. The Atlantic is a filthy piece of Leftist propaganda read by limousine liberals striving to appear chic and informed. It’s full of rant, diatribe and hyperbole that rarely pans out as reality. And it loves any kook with an authoritarian bent hence its praise of the Church of Scientology in a now sheepishly retracted story. In short, it’s a Maoist’s wet dream.
Sweet dreams, Charlotte.
The handling of classified documents are determined by the law and by executive orders.
Not by magazine articles.
The Clinton, Bush and Obama EO’s are publicly available. Anyone can read them.
This issue did not magically erupt with Trump, it is not new.
It is only the left as typical pretending that anything Trump does is wrong – regardless of the fact that Trump’s conduct is within the law, and within the norms of past presidents.
Even if the law the EO’s were all found unconstitutional tomorow – Trump can not be guilty of a crime for doing something that up to the moment those laws are declared unconstitutional was the accepted norm.
1. The latest exchange of comments shows how divided our great nation is at this time. In the pre-President Obama we found common ground that DoJ shouldn’t use Mass-Media should interfear in elections and they should play this role.
2. IF this “matter” goes to court, it will be a very long way. IF the former President will be convicted, this was a meandering path. IF so, he can appeal, which adds to the timeline. What stays: The opionion from American’s who walk on the main road, is the breaker in the outcome of elections. It says a lot about GOP leadership in RNC, Senate and House, that they let run the narrative provided by the left. As midterms are looming, VOTERS have it in their hands if Congess flips. While the former president is not on the ballot, a GOP majority in the House COULD interfear with the Cabinet. An as we know since Clinton, impeachment is a political process.
3. Although its two weeks shy: If someone is still interested to LEARN about classified information from the eyes of “The Atlantic”
Or you could read the Clinton, Bush and Obama executive orders regarding Classified documents.
Why is it that the left constantly prefers left wing nut opinion over primary sources ?
The Biden Administration, including Garland, make the Harding Administration look like boy scouts. Thank God the old SOB won’t rule much longer. I expect the democrats to remove him one way or another.
How long will it take for Fox News or John Solomon to interview Mick Mulvaney or John Kelly regarding the supposed “standing order” of declassification? At this point, no news outlet should accept what comes out of Trump’s mouth as the truth without attempting to verify it. Former Chiefs of Staff for Trump have gone on record to call him out. But, half of the country will not hear that side of the story, which is why Trump will continue to do it.
There is no need to “verify” what Trump said since – while he was President – he could declassify anything by stating that it is declassified. So, if he says material was declassified, by definition it was. While a President declassifying material may be unwise or bad politics, by law, a President can never “mishandle” classified material since he or she is the ultimate authority on classification. There is no one else in the executive branch (none of whom are constitutional officers) who can override his statements nor would he have needed their “approval” to declassify. So, your statement is, very literally, nonsensical. What is telling is that any number of people involved in this mess know this to be true and are acting as if Trump could violate any kind of classification scheme. Even Turley should or does know this. The fact that this Presidential power is well known in DC is another reason this is infuriating. Everyone involved in the Biden administration and their helpers in the media are lying to our face; they know that many of us know they are lying and yet they continue to insult our intelligence and their own.
For matters nuclear there is the Atomic Energy Act under which nothing can be declassified.
Your comment smells of libturd desperation… and Joe Biden’s soiled diaper.
First this is nothing classified that can not be declassified. That claim is absurd.
But more relevant there is nothing classified by the executive that can not be declassified by the president.
The courts have REPEATED rule on congressional attempts to delegate power independently to some branch of the executive. Can not be done.
The executive Power shall be vested in a President of the United States of America.
JJ & John Say are flat out wrong. All matters nuclear are forever classified, by law. This is distinct from the “secrets” system established by Executive Order. And of course the prez is as bound by the Atomic Energy Act as are all others.
DB is flat out wrong.
There is no executive power that the president can not exercise.
Congress makes laws. That is all. They do not exercise executive power.
In 2010 Pres. Obama declassified Nuclear documents identifying the number of warheads in the US inventory.
And the nuclear weapons at sea in 2016.
Why do you left wing nuts constantly insist on making OBVIOUSLY false and trivially falsifiable legal claims.
Do you think the internet does not exist ?
Lets get this clear – every source you have that says the president can not declassify nuclear secrets is WRONG,
They are either ignorant, or lying. Regardless, these are people you should probably NEVER trust again.
The 3 most highly classified things in the US are the design, the location, and the number of nuclear weapons.
You can find nearly all of the design of Fat Man and Little boy on wikipedia, Obama declassified the number of warheads and the location of some.
There is NOTHING a president can not declassify.
All you are doing is proving how poor a legal education many law school grads have received.
And the fact that left wing nuts will argue over stupid things.
Is there anyone who doubts you – and all your sources would be argument exactly the opposite – if this was about Obama ?
I noted While the Clinton debacle was going on that Obama’s use of his private email to send classified information did not violate the espionage act – even though Clinton’s did – because Obama was president.
My positions – and the actual law, do not change based on who is currently president.
John Say is *still* wrong:
David can you quote John’s statement and then the statement from Wikipedia that proves John wrong. I don’t think it even mentions the president.
It does not matter what wikipedia says. I barely bothered to read it.
It does matter what the constitution says.
What actual laws say.
What 3 different presidential EO’s on classified data says.
What DOJ’s web site says regarding declassifying documents.
What courts have said.
What multiple presidents have done – publicly.
These things are all FACTS in one form or another.
Even if the DOJ web site is Wrong, even if the presidential EO’s are wrong. even if the decisions of the courts are wrong. even if the actions of multiple presidents are wrong – they are still all primary sources. Wikipedia is not.
Where appropriate – I will be happy to argue that a law is wrong,. or DOJ is wrong or that a presidents actions are wrong. or that a court got the law wrong.
But I can not argue that they did not do what they did.
A law that is wrong – still says what it says.
The actions of a past president – right or wrong – are still acts.
Reality can be immoral, unethical, illegal or unconstitutional.
But it is still reality.
Primary sources always take precedence over secondary ones.
I will be happy to have the discussion with DB that all these other sources are wrong.
But he is trying to claim they are not real. He is not actually claiming they are wrong, only that we are in an alternate reality where they do not exist.
Where Pres. Obama declassified TS/SCI nuclear secrets – and at the same time he somehow didn’t.
“It does not matter what wikipedia says. I barely bothered to read it.“
I agree, John, but when one links to a Wikipedia article to prove his point, the proof should be in Wikipedia. Apparently David screwed up and walked away rather than trying to prove his case.
All the other stuff you mention was not part of my reply to David Benson.
Once in a while I bother to read the 2ndary or tertiary sources that leftist provide.
As an example we are all here debating whether the president can declassify nuclear classified documents.
While the answer is trivially yes.
The debate itself is entirely moot unless there were nuclear classified documents at MAL.
We have only unnamed sources at WaPo for that claim.
The warrant – with a kitchen sink of laws – does not include the nuclear secrets laws.
So all we have is the claims of a reporter from a newspaper that has been universally wrong about pretty much everything – even when they had named sources.
Yet, still we debate something that is both obvious and irrelevant.
And worse still something that is Stupid.
The left thinks that Trump is evil, brilliant and stupid all at the same time.
He is so evil he will destroy the country – ignoring that he had 4 years to do so and despite the holy war between him and the press was actually a very tame president.
As they say Actions speak louder than words, By every measure Trump was 100 times the president Biden is.
Regardless, back to my point – the left’s thesis here appears to be that Trump deliberately stole the nuclear codes or something like that from the WH. That he did so virtually undetectably.
No one gives any thought as to why Trump would want these nuclear secrets.
What is it that Trump purportedly wants from these nuclear secrets ?
Does anyone honestly think he is selling them to the saudi’s or Russian’s ?
What idiot thinks a multi-billionaire is going to engage in treason that will with near certainty get caught ?
It is near certain that anything Trump deliberately took with him to MAL meets several criteria.
It is something he cared about and wanted to keep.
It is something he near certainly declassified – for the same reasons.
It is separately likely that GSA transfered the bulk of material to MAL, independently of the small amount Trump likely moved himself.
What GSA transfered is items that were in the presidential office areas of the WH at the time Trump left.
I can not think of why Nuclear secrets would have been.
But if they were – the responsibility for that rests with GSA not Trump.
And finally we have the remarks by Sam Harris that went viral recently.
I have disagreements with Harris – but he is both very smart and very moral.
And yet Harris tried to make the moral case for doing whatever was necescary to prevent Trump from being re-elected.
If Sam Harris was willing to try to moral justify criminal acts to prevent Trump from being re-elected – why is it we are to beleive that GSA, DOJ, FBI would not set him up – plant evidence ? Especially given we are talking about FBI agents that have already tried to wage a soft coup against Trump while president. and some agents that engaged in entrapment against others for political purposes.
Regardless, if among the most moral people on the left will buy the ends justifies the means regarding Trump.
Why should anyone trust those far less moral than Harris ?
But those on the left never think below the surface.
In left wing nut world Trump is stupid, needs no good reason to do something criminal that provides no consequential advantage involves enormous risk, and has a near certainty of getting caught, and can be trivially acomplished legally at much lower cost and risk.
People do not get succeed in business if they are that stupid. ‘
I suspect one of the reasons those on the left buy this stuff – is because if they had critical thinking skills they could not buy their own ideology.
Statism in all forms DOES NOT WORK. There is no such thing as benign big government.
There is just bad and much much worse.
Those forms tainted with communism, or socialism nearly always result in copious bloodshed.
By their fruits you will know them. Do you
gather grapes from thorns, or figs from thistles?
We can judge communism, socialism, the modern left, Trump, Biden, Obama all that way – easily.
You’re citing Wikipedia….. HAHAHAHAHAHAHAHAHAH
“The 3 most classified things …” sayeth John Say.
Little do you know, that is clear.
“Little do you know, that is clear.”
I know how to check the facts, the law and the constitution before lobbing obviously stupid remarks off the hip.
Your arguments and your sources have been FALSIFIED.
The only part of this debate that is ideological – is your desire to get Trump, even if that requires bending the law, breaking the constitution and ignoring all of past history.
There is no right or wrong answer for what OUGHT to be here. In an alternate world with a different constitution, and laws and history – you could be right. But we live in this world,. this country with this constitution, and the current laws, with the current national security EOs, and current court cases – all of which are about as perfectly consistent was we ever get in law and government.
And NONE of this is consistent with your claims or your sources. At best – you should have long ago discarded these untrustworthy sources. More likely – they are lying to you, and you are buying it.
Why do you think it is so easy to find PRIMARY sources to falsify your claims ?
It is not because I am brilliant or have infinite knowledge.
It is because i know the difference between the text of the constitution and the opinion of some left wing nut talking head or Wikipedia.
The biggest problem I have falsifying your poor claims is that googling anything on any issue related to classified docuemnts right now produces hundreds of links to talking head editorials about the current event – and the past conduct of presidents ends up demoted by google.
I do not care what some host or guest on MSNBC says.
I do care what the constitution says.
What the courts have said.
What the law says.
What past presidents have done
What executive orders say.
Most of the time we are lucky to get 3 of 5 of these to agree.
On today’s issues – you are unanimously wrong.
In Navy v. Egan, the US Supreme Court said that the President has the right to decide what is classified and what is not and statutes regarding classification are an additional grant of power to him to help him decide what is most important and what is not. So they can be declassified by him.
David Mills — But Restricted Data remains Restricted Data forever and disclosure is subject to the possiblity of extreme penalties.
Really – ask yourself – who is classifying all this material that you think can’t be declassified? A civil servant? Or, do you think congress people are going through material classifying things? Let me answer for you – it’s low-level civil servants for the most part. So, a person who is hired by the President deciding something is classified is, in your head, a higher authority than the President, a constitutional office holder, head of the executive branch and representing a separate branch of government than the legislative and judicial? And, can make a decision that cannot be overridden by the President? Does that make sense to you? If it does, you need to go back to high school civics.
run_dmc — Restricted Data is “born restricted”, by law. Nobody decides.
Read the Wikipedia page…
You’re citing Wikipedia………. HAHAHAHAHAH, rather than actually reading the legal cases, the law and the constitution. There is no such thing as “born restricted.” Obviously there can’t be since some PERSON would have to determine what is born restricted vs. not and that PERSON can be overridden by the head of the EO. Why does the left think anyone takes Wikipedia seriously anymore. Cite case law numbnuts or stop posting.
BTW – “born restricted” is a nonsense term that comes from spy books which the basement dwellers at Wikipedia are throwing around to make it seem like they know what they are talking about. If you had ever actually had a security clearance like I have, you would know how many of these terms don’t actually apply to real classification protocols. Again – classification doesn’t apply to a President who determines de facto (by taking materials out of a classified environment) or de jure (by issuing a declassification order) that material is declassified.
His authority ends when his presidency ends. He cannot retroactively declare them declassified. Where is his evidence that he had this order during his presidency?
Is there a tweet? An extemporaneously written note from a conversation he held with someone (apparently not with his COS)? If there is nothing to back up his claim, then it has no merit.
Take this line of thinking to its logical end. Can Biden claim he thought in his mind to classify all Trump’s documents before the raid?
If you say, no, then you are being logically inconsistent.
“His authority ends when his presidency ends. He cannot retroactively declare them declassified.”
“Where is his evidence that he had this order during his presidency?”
In a criminal case the burden of proof is on the prosecutor,
Further the president may declassify anything defacto – just be removing it from a classified environment.
He need not formally declassify it.
That said – Two Trump attorney’s in statments under oath have verified trump standing order.
A submission to Judge Reinhold in the affadavit matter has confirmed under oath that Trump declassified this material, and indicated that there were 4 other witnesses.
“Is there a tweet? An extemporaneously written note from a conversation he held with someone (apparently not with his COS)? If there is nothing to back up his claim, then it has no merit.”
Depending on the material – which we are not allowed to know, Trump’s large scale declassification of many things is documents in WaPo stories, NYT stories and Executive orders.
“Take this line of thinking to its logical end. Can Biden claim he thought in his mind to classify all Trump’s documents before the raid?” No but he can claim to reclassify them. But that would not make posession of them a crime.
It also MIGHT not reclassify them – depending on whether they have been made public. Courts long ago rules that once the cat is out of the bag the government can not reclassify something.
“If you say, no, then you are being logically inconsistent.”
Nope, Classification and declassification are not perfect obverses.
And if they were – you would lose this argument.
Most classified documents are “born classified” – they need not be declared classified. They are classified because of their content. However an assortment of authorities inside of government have been delegated the power to declassify, or classify documents and to mark them as classified.
The claim that the president can declassify whatever he wants – merely through the action of transfering it out of a classified setting – did not originate with Trump – it is part of the Bush and later Obama EO’s on how classification works
.AND WHERE is Your Evidence that he declassified them After His Presidency…? ..obviously he did it before the papers were packed….
You have to keep up. EO’s, court cases, and logic tell you that you are wrong. But that is consistent with most of the things you say since most of what you say is wrong as well.
Which ones? You found an EO or court case that says a former president has more executive power than a sitting president? That is fascinating.
If Trump as president has the power to declare any record as classified or declassified, why wouldn’t Biden as president have that same power? Because he has a big fact D next to his name on a ballot?
“You found an EO or court case that says a former president has more executive power than a sitting president? ”
No one has claimed that. As is typical of left wing nuts you warp time.
Trump’s executive power ends the moment Biden was sworn in. But he decisions, orders and acts as president remain in force – until properly reversed. In some instances they are effectively irreversable.
As an example If Trump declassified a document and it has been published – it can not be reclassified.
Regardless, If Trump declassified something – even defacto – merely by removing it from secure control, that document remains declassified – until Biden affirmatively reclassifies it – do you have evidence that has been done ?
“If Trump as president has the power to declare any record as classified or declassified, why wouldn’t Biden as president have that same power?”
He does – with the exception that he can not reclassify something that is public knowledge.
“Because he has a big fact D next to his name on a ballot?”
I am not aware of a single person arguing that Clinton, Obama, or Biden – while president could not classify or declassify documents.
There are myriadss of other factors that are important too.
Actual and potential harm matter.
There is by definition no harm done by declassified documents.
That is partly why the president ultimately gets to decide what is classifed and what is not.
Because they decide policy.
There is no real or potential harm from the Documents Trump had at MAL. They were paper documents and they were locked up. And there were few of them.
Conversersely Clinton had to commit a crime just to get those documents to her bathroom email server, and there were thousands of documents accessible to any hacker in the world.
And Clinton as Sec State does not get to set US policy, so exposing it willy nilly is inherently harmful.
Further we still do not know what these documents were – and leaks in the WaPo are more likely to tell us what they were NOT than what they are. No one at DOJ has said anything about nuclear documents, The warrant said nothing about nuclear documents, and there is no rational reason for Trump to want nuclear documents at MAL.
If these turn out to be Collusion Delusion documents – it is actually DOJ/FBI that have committed a crime.
They KNOW that Trump declassified those, and therefore this is a massive abuse of power.
The “standing order” is just the coup de grace.
The case goes nowhere standing order or not.
As to your claim Trump lies.
Please identify a consequential lie from Trump ?
“Inflation is transitory” – oops not Trump.
“I did not have sex with that woman” – not Trump.
“If you like your doctor you can keep them” – not Trump.
“We are not in a recession” – not Trump.
“not another foot of wall will be built” – not Trump.
“They spied on me” – Trump, but not a lie.
We still have left wing nuts arguing that the PRA applies to Trump and that NARA must confiscate records – despite Judicial Watch v. National Archives and Records Administration already deciding the issue.
The president can designate any WH records personal and thereby remove it from NARA authority.
And he can do so formally, informally and just defacto by taking personal posession.
You can agree or disagree with Judge Jackson, but her decision is the current state of the law,
NARA or DOJ can challenge that – but the burden of proof is on them.
Jackson’s decision makes the DOJ grand jury and the DOJ subpeona illegal.
It is the FBI/DOJ/NARA and specifically Merrick Garland that are losing this.
They raided a former president and are on the wrong side of the law.
Apparently, no one answered the question re Biden above…. But fine I’ll play.
“Please identify a consequential lie from Trump ?”
How about his claim about Obama’s 33K documents? Even Fox’s Bret Beier cleared that one up: https://www.google.com/amp/s/www.newsweek.com/fox-news-host-refutes-trump-claim-obama-kept-33m-classified-documents-1733434%3famp=1
Next, Judicial Watch v. National Archives is a district court case that has zero binding precedent on the Trump search or any other search. Can you cite an appellate court case or higher that is binding and applicable?
Regardless, John Solomon’s cherry picked reading of this case with zero binding authority was deeply flawed. The case can be differentiated on procedural grounds. A private third party was suing under the APA. That would not be the case here. In fact, the judge recommended the proper course of action would be to have the DOJ seize the materials rather than have a third party sue for them.
More importantly, that case cited the following from Armstrong (a DC District court case with binding authority in DC federal Court):
“[C]ourts are accorded the power to review guidelines outlining, what is, and what is not, a ‘presidential record’ under the terms of the PRA. The PRA does not bestow on the President the power to assert sweeping authority over whatever materials he chooses to designate as presidential records without any possibility of judicial review.”
See for yourself: https://casetext.com/case/judicial-watch-inc-v-natl-archives-records-admin
That seems to refute precisely what you claim re Trumps power…
So many problems.
First no one has clarified anything – except that we have conflicting information about who is in control of documents that are somewhere in chicago, not at the national archives in Washington.
Next – do you know what a lie is ? You have not proven that Trump’s statement was wrong. To be a lie you have to prove it was KNOWINGLY AND DELIBERATELY wrong.
You provide a purported quote from Armstrong, but not a cite.
Given that you are posting as anonymous – why should I trust you ?
Next your quote does NOT mean what you think.
The supreme court has the power of judicial review over the constitution.
That does not mean they can change it to mean whatever they want.
All your cite says is that the courts – following the law and constitution are the appropriate venue to resolve the matter.
Which Judge Jackson did.
The DC court opinion would be binding precedent on PRA based claim in the DC circuit.
It would be precedent – though not binding elsewhere. It would be compelling guidance.
Further absent contradictory law – DOJ/FBI would be obligated to challenge the decision – rather than just ignore it as they did. This is especially important as DOJ’s position in the JW case was – the president can do as he pleases.
And why would you Cite Jackson’s opinion ?
For a note that you think falsely disagrees with her decision ?
Regardless, all you are doing is PROVING that left wing nuts and DOJ have zero interest in the rule of law.
I would note that the JW decision was while Obama was president, Democrats controlled DOJ and by an Obama appointed Judge in a case trying to compel NARA to follow the PRA against a democratic former president.
Suddenly in 2022 – with a republican former president, all that is out the window.
So far out the window that DOJ does nto even bother to get a court to support changing their minds, and diverging from the only existing precedent.
Your application of the law is politically biased. That is the rule of man not law.
Seriously ? You think legal boilerplate that confirms that the courts have the power to judicially review laws refutes the actual decision of the court that decided that the president gets to decide what is a presidential record..
If you graduated from law school – sue whoever gave you a JD. You were ripped of.
You can not manage to get really simple things right.
Of course the courts have the power of judicial review.
That does not mean they can make up whatever results they want.
Alright. You really think a district court opinion is binding? If that is the case, then we can end discussion there. District courts are persuasive authority, not binding authority. Do you agree?
“Alright. You really think a district court opinion is binding? If that is the case, then we can end discussion there. District courts are persuasive authority, not binding authority. Do you agree?”
Depends on what you call binding.
Roe was not binding on SCOTUS. Nor was it binding on TX law makers.
Nor court decision by any court is binding on anyone but the parties – after appeals are dropped and exhausted.
But any district court decision is “binding” on the federal govenrment – on DOJ, FBI. And if they disagree they must openly challenge the decision in court, not just ignore it.
Any district court decision is influential outside that district – absent a different district court deciding differently.
Local court decisions are cited in federal courts, and federal in local courts, distant state court decisions in local states.
Even decisions of foreign courts on occasion. None on these are binding. All are to one extent or another influential.
More influential than the legal arguments of the parties.
The rule of law actually requires this. The law can not mean one thing in des moines and another in newark.
When courts decide issues – the parties are bound – but everyone else – including private individuals are told – this is the law.
Ignore it at your peril.
Judge Jackson’s ruling is presumptively “the law of the land” until someone successfully challenges it.
Either by appealing – JW choose not to apeal, or in a case in another district.
On appeal – Judge Jackson would have been presumed correct, and the plaintiffs would have had to convincingly argue why she was wrong. A different district would not have had to give her decision as much weight as an appeals court.
but still would have had to explain any divergence.
Regardless, there is one decision here – no appeal, no circuit split.
Her decision is the presumptive law of the land. NARA, DOJ and FBI were obligated to follow it or challenge it.
They were not free to ignore it.
That is abuse of power on the part of NARA, DOJ. FBI.
The government is permitted to go forum shopping – to find a more favorable court.
It is NOT permitted to pretend another court would have decided differently.
Finally – this decision was by an obama appointed Judge, in favor of President Clinton, and supported by argument by the Obama DOJ and Obama NARA.
You are quite literally arguing for the rule of man not law.
You are claiming that the law means whatever is favorable to you politically – whatever harms your enemies and helps your friends.
The law must be the same for rich or poor, for black or white, for democrat or republican. For racist, and anti-racist.
We can not accomplish that perfectly – but we are obligated to try.
No, it does not “depend” on what I mean by binding. A district court has no authority to ignore binding precedent from an appellate court in its jurisdiction. It does not have to abide by persuasive authority (either from another jurisdiction or from a trial court or district court decision within its jurisdiction). This is how the law works.
FYI, SCOTUS is not bound by these requirements because it is at the top of the food chain. This is literally how our legal system works. Please educate yourself.
District/Trial court decisions are not “binding” on the federal government or any other party (other than the parties involved in the case at hand with respect the specific facts in the case at hand).
My question was a simple one. Is it binding or not? And the answer is, emphatically, “No.”
This has nothing to do with politics. This is our basic legal infrastructure. Perhaps this chart will help:
Here’s a 7th Cir. case, clarifying:
“A single district court decision, however (especially on that cannot be appealed), has little precedential effect. It is not binding on the circuit, or even on other district judges in the same district. Colby v. J.C. Penney Co., 811 F.2d 1119, 1124 (7th Cir. 1987).”
Here is another guide: https://guides.law.sc.edu/CircuitRiders/WeightofAuthority
There is no such thing as binding or authority when there is not consequence for failure to do so.
At the same time the only decision todate on the applicability of the PRA is that of Jackson.
Jackson’s reasoning – despite being a left wing nut Obama appointee who has repeatedly demonstrated partisan bias, is a pretty originalist reading of the law and constitution.
Regardless as the ONLY decision on the issue – Bush. Obama, Trump even Biden are entitled to rely on it, and DOJ is obligated to follow it or challenge it.
I would note that the constitutional presumption of innocence REQUIRES that if the only legal case adjudicated favors YOUR understanding of the law – even if the courts subsequently decide against you, you still can not be convicted.
Beyond a reasonable doubt means nothing if it does not mean – no court ever though the defendants actions were legal.
It is entirely binding UNLESS appealed and overturned by the appellate court. Geezus, how do you not get this simple fact. And, appellate courts don’t just take up a case on their own. A plaintiff or defendant has to actually appeal it. No one here did, so the district court decision is binding.
Yes, it actually does matter what you mean by binding.
Supreme court decisions are not binding – in the way you wish to claim.
District courts can ignore them. And often do, or are ignorant of them, or are just stupid.
Regardless. district court decisions at odds with supreme court decisions occur all the time.
When they are appealed – usually but not always the district court loses.
Sometimes the appeal gets back to the supreme court.
Very very very rarely the supreme court decides the district court was correct and reverses itself.
So NOTHING is binding in the absolute sense.
All decisions by one court are “guidance” for other courts with varying degrees of influence.
That is ACTUALLY how the law works. There are no stare decisis police locking judges up for ignoring precedent.
I was part of a local court case where a judge completely ignored the most fundimental of contracts law repeatedly.
Law that was several centuries old. At worst the judge would lose on appeal. that would not have gotten my time and legal costs back. The case settled – badly, which is what the judge wanted, because even winning would ultimately be losing.
There is no consequence except to their ego to a judge for ignoring “binding” precident.
If you wish to change the law – subject judges to sanctions for disregarding “binding” precident, allow damages – I will join you.
But that is not the law as it is today.
We are not that far apart. the big difference is that you seem to think this is binary when it is not.
And you talk about authority as if it has force.
There is no consequence to any judge at any level beyond their ego for ignoring “binding precedent”. ‘
Appellate courts can verbally b*tch slap and reverse, and maybe they can change future judicial scheduling.
But there is virtually nothing in the way of an enforcement mechanism to hold judges accountable for failing to follow “binding” precedent.
In 2020 we learned that the Constitutions requirement for “high crimes and misdemeanors” to impeach means nothing.
Numerous excellent constitutional lawyers argued otherwise – including Turley, but fundimentally there is no check on the congresses power to impeach – they can ignore the constitution, because they can not be forced to comply with it.
For all the effort our founders put into narrowing the impeachment clause – they failed – because nothing is binding if there is no enforcement and no consequence.
There is no enforcement mechanism beyond ego and reputation – therefore any claim to binding or authority is weak to non-existant.
At the same time you are incorrect – courts are heavily influenced by decisions close at hand, or remote, lateral to them or from above. The weight they give is different. But it exists.
“District/Trial court decisions are not “binding” on the federal government or any other party (other than the parties involved in the case at hand with respect the specific facts in the case at hand).”
This is false – and obviously so. Fact specific decisions are not binding. Decisions regarding the law are absolutely.
While it is rare that consequences are imposed on government for violating “binding” decisions. It is not unheard of.
The government can be sued for violating civil rights – and civil rights include rights established by decisions at law.
Are you saying that the Police can disregard Gideon v. Wainright, or Miranda ?
Frankly your argument regarding government is ludicrously stupid. The “rule of law” rests on the presumption that courts will apply the constitution and the law as written, and that the government will follow that direction of the courts.
It is “the rule of man” to presume that each administration, each government department, each individual government employee is free to have and impose their own view of the law.
Do you actually think about how your arguments would actually work in the real world ?
Ultimately the way that the classification system works or who owns the records of a president are arbitrary.
Judge Jackson’s decision was correct – in that it correctly applied the law and constitution.
But her decision was not ethically or morally or in any other way right or wrong.
We as a people are free to decide that presidential records do not belong to presidents under any circumstances.
To do that we must change the constitution.
We are also free to decide to deal with classified records differently.
To do that we must amend the constitution.
The rule of law – not man, requires following the law and constitution as they are – not as we wish them to be.
Changing them if we really do not like them.
Our founders decided that all powers congress or the constitution gives to the executive are vested in the president.
Congress can not change that.
If we do not like it – we must amend the constitution.
This is not a question of right or wrong, of morality or ethics.
It is a question of chaos vs. order.
WHAT? A decision from a judge in the judiciary is only “persuasive authority?” For one thing – I dare you to even define what “persuasive authority” is and the difference between it and “binding authority.” District judges are not “advisors.” Their opinions are binding until appealed and overturned A DC district court opinion would be the binding authority since the President would be acting within the DC district until appealed and overturned which was not done here. Stop acting like you know legal process.
“How about his claim about Obama’s 33K documents? Even Fox’s Bret Beier cleared that one up: “
Is this what ATS thinks is consequential? It’s meaningless. Aside from not being able to decide what is consequential ATS links to a statement that proves that his statement was a lie.
“How about his claim about Obama’s 33K documents? Even Fox’s Bret Beier cleared that one up: “
Here is what the article actually said: “Bret Baier refuted suggestions promoted by Donald Trump”
Trump didn’t claim, according to Baier, he suggested. The two words are very different. ATS claims Anonymous the Stupid is a racist. vs. ATS suggests Anonymous the Stupid is a racist.
In any event, if this was the consequential statement that ATS rests his hat on, his hat is on the floor.
It literally quotes a trump tweet… And then quotes Brett Beier refuting the accuracy of said quote. Yikes.
ATS’ link refutes ATS’ position. Typical. When will ATS get something straight?
TRUMP: “What are they going to do with the 33 million pages of documents, many of which are classified, that President Obama took to Chicago?” Trump asked Friday in a Truth Social post.
NARA: “The National Archives and Records Administration (NARA) assumed exclusive legal and physical custody of Obama Presidential records when President Barack Obama left office in 2017, in accordance with the Presidential Records Act (PRA). NARA moved approximately 30 million pages of unclassified records to a NARA facility in the Chicago area where they are maintained exclusively by NARA. Additionally, NARA maintains the classified Obama Presidential records in a NARA facility in the Washington, DC, area. As required by the PRA, former President Obama has no control over where and how NARA stores the Presidential records of his Administration,” the statement said.
So, class, to review, what is the false statement made by Trump?
Zero Classified Documents were taken to Chicago by Obama, contrary to what Trump said. He was off by about 33,000,000.
We are in the midst of deciding whether the DOJ and FBI have lied AGAIN.
We already know given Judge Jackson’s decision that NARA has been lying repeatedly about its own authority.
Why are we to beleive a press release by NARA ?
The National Archives is in washington DC.
The Obama documents are in what used to be a food warehouse in Chicago.
According to NARA. Eventually they will go to Obama;’s library. A private library funded and essentially owned by the president.
The purpose of the PRA was to provide former presidents with the resources to preserve the documents of their own presidency.
Not to deprive them of those documents.
NARA has a separate legal purpose – which they do very badly – which is the declassification of documents. A task they are decades behind on. Every president since Clinton has ordered them to do better – they have not.
Finally, Not only do former ranking govenrment officials retain their security clearance – i.e. they continue to have access to classified documents, former presidents and vice presidents uniquely have access only limited by the current president.
It is near certain that at any given time EVERY former president has several classified documents in their possession.
Unlike everyone in government EXCEPT the current president and VP – former presidents can request any classified document that they wish, and can only be blocked by the current president. They are the only people in the country who are not required to prove a need to know.
If Trump or Bush or Obama was found in posession of the nuclear codes. That would not violate the law – unless they stole them.
It sounds like ATS believes Trump removed all the boxes from the WH in his underwear. That type of thinking is foolish.
Obama and Tump both had documents moved. That was done by officials who normally do those things. ATS is using word games and tweets (not proof) to prove his case.
Actually – we do not know how many of the 30 million “unclassified” documents Obama took with him were classified but declassified by Obama right before he left office. There could be many documents that Trump didn’t declassify that are already at the Archives. They are now just arguing apparently over whether the ones he took with him were classified or not and as has been said about 5000 times already, the President has the right to declassify material (just as Obama likely did). The Archives cannot overrule him. But, wrt Obama’s docs, as usual Trump may know things that we don’t. It has virtually always been the case that when Trump makes a serious claim, he turns out to be right, not lying. And, the other side of the fence are the ones obfuscating or outright lying.
So jousting tweets are a substitute for Facts ?
Exactly – cause Beier is omniscient and therefore we must take his “fact checking” as THE authoritative source. Sheesh. He READS WORDS FROM A TELEPROMPTER that an intern looks up.
Has a single document been digitized or made public? The answer is absolutely NO!
Wow – for people commenting on a legal blog, there is a woeful lack of the law in these comments. A district court decision is standing law and binding unless it’s appealed and overturned. Man – stop opening your mouth and proving a fool.
What news outlet should accept what comes out of Garland or Wray’s pie-hole, eunuch? TRUMP has been proven to be correct and honest far more often than the two corrupt maggots Garland and Wray… who both are a stench in the nostrils of honest Americans…
So go take your TDS medicine, fool, Pigfart Piglosi Vodka, perhaps?
You suffer from TDS, just like all these other fools. The President can declassify anything he wants. The FBI has been caught in lies upon lies. From Russian collusion to the faux insurrection. Every attempt to bring down a sitting President that would not do the bidding of the oligarchs. With every feeble attempt you morons make Trump stronger. Good luck in 24’, you won’t be able to steal enough votes to win.
Remind me: who is the president again? Who has the power to classify or declassify in 2022?
Again he is not a “sitting president.” He is a civilian.
The fact that Trump is not currently president does not alter the past.
Anything declassified prior to Jan 20,2021 remains declassified – unless it was not made public and Biden reclassified it. There is no evidence so far of either. In fact we know very little about these 11 documents – except that the were stored securely at MAL.
For there to be a crime – Trump would have either had to have Stolen the documents after Jan 20,2021
or not declassified them AND attempted to DO something illegal with them – mere posession is not sufficient whether classified or not – so long as the documents legitimately arrived at MAL.
BTW that would also have been true of Clinton. But the thousands of classified documents she had on here mail server did not arrive their legitimately.
If no evidence is needed to prove trump’s standing order, why is evidence needed to prove Biden’s claim? Can he not say that simultaneously with his inauguration as president, he decreed in his head that all trump records are presidential records? When trump was informed of the need to return the records via subpoena, and failed to do so, he intentionally withheld presidential, classified info. He now had constructive knowledge that they were classified again. Do you see how silly this is?
Also, none of this is public yet, so your caveat regarding public records (which is incorrect by the way – look at the government’s reclassification of previously public 9/11 records for example) is irrelevant.
Did Biden make such an announcement? No. You are silly.
ATS thinks Biden can make every piece of paper in every home in America classified by simply saying all are classified.
What a doofus.
Trump is literally arguing that he has absolute authority as president to make every piece of paper in every home in America classified by simply saying all are classified.
Remind me, what authority does Trump believe limits his authority to do so while president?
The presidents authority with respect to documents and classification does not extend farther than the federal government.
“The executive Power shall be vested in a President of the United States of America.”
Not ALL POWER. Only executive power.
Trump or any president can classify every single document within the entire executive branch of government
he can also declassify every single document within the entire executive branch of government.
Presidents can make rules – executive orders – that those in government must follow. He can not make laws that everyone must follow.
The presidents authority is constrained by the constitution – he has no power that the constitution does not delegate to the executive.
Further to the extent those constraints are constitutional – congress can further constrain the president through laws.
But the constitution forbids congress from granting a power to the executive branch of govenrment while denying that power to the president.
“Trump is literally arguing that he has absolute authority as president to make every piece of paper in every home in America classified by simply saying all are classified.”
ATS is being ridiculous again.
Again – why do people on the left just MAKE STUFF UP as if none of us has a brain, eyes, ears and reading skills. IS TRUMP ARGUING THIS – “literally” or not? In fact, he’s arguing the very long-standing legal doctrine that he can DECLASSIFY executive branch documents. Not that he can classify the documents of private citizens. He is “literally” stating virtually the opposite from what you are stating. And, what you are stating is bizarre. I hope you aren’t having a stroke? Now, arguing that someone in government has the power to classify and confiscate the documents of private citizens sounds exactly like the kind of thing the left would want to do. So, maybe you’re just projecting.
Because declassifying can be defacto, Classifying something that has been declassified can not.
Further because you are alleging a crime – and the burden of proof is on the government.
Even if this was a civil dispute – the burden of proof is on the plaintif – in this case the government.
We have spent thousands of years working out “the rule of law” – you do not get to pretend it away because you do not like the results.
This is not about what occurred in the president’s head.
To defacto declassify anything the president must ACT. But the act can be as simple as removing a classified document from security, giving it to someone otherwise not allowed to have it, or moving it from a SCIF to the east wing or MAL.
Only the president can do this.
Biden must ACT to reclassify these documents – and faces a higher burden – if they have been made public – he is blocked.
There is a first amendment issue.
Regardless, neither Trump nor Biden can declassify or reclassify something in their heads.
They must ACT.
BTW this distinction is much more broadly true.
Crimes are ACTS not thoughts.
Even god judges out ACTS, not our thoughts.
Wow – maybe I just don’t realize how many people don’t know the basic workings of our constitutional republic because I used to work in the executive branch, and on classification issues. So, it’s been a while since I’ve had to deal with people who just don’t know basic constitutional schema. But – NO – a President cannot exercise power over a previous President’s decisions about records made during the previous President’s administration. If that weren’t the case, there would be chaos. Under what you are saying, what would have stopped Trump from “classifying” all of the records in the Obama administration so that he couldn’t build a presidential library or write all those memoirs that make Obama millions? No one has EVER claimed that a President could “classify” a previous President’s records after they were declassified. But, keep opening your mouth and proving a fool.
“Wow – maybe I just don’t realize . . .”
It’s nice to have someone here who actually knows what they’re talking about — and who can think.
First you should go and find out what the Presidential Record Act entails. You’ll see it’s not a criminal statue and the president has say in what happens with his records. https://www.archives.gov/presidential-libraries/laws/1978-act.html
Next you should read the ruling by U.S. District Judge Amy Berman Jackson in Washington D.C. A liberal biased judge who ruled a decade ago for President Clinton. You can find all relevant information from this new story;
“The Supreme Court reaffirmed this in the 1988 case, Department of the Navy v. Egan : “The President, after all, is the ‘Commander in Chief of the Army and Navy of the United States.’ U.S. Const., Art. II, § 2. His authority to classify and control access to information bearing on national security…flows primarily from this constitutional investment of power in the President, and exists quite apart from any explicit congressional grant.”
Declassification papers from US government site, declassifying crossfire hurricane FBI investigation papers.
You might not be aware but this web log only permits two hyperlinks per comment. I edited your comment above so that it would post. If in the future you would like the readership to review more than two links this may be accomplished by using multiple comments of two or few hyperlinks per each.
I can only say, thank God that Merrick Garland never made it to the Supreme Court.