Eleventh Circuit Rules for DOJ on Classified Documents As Trump Claims the Right to Declassify with a Thought

 

427 thoughts on “Eleventh Circuit Rules for DOJ on Classified Documents As Trump Claims the Right to Declassify with a Thought”

  1. The disputes, arguments, conflicting opinions and insults evinced right here in the comments section represent a microcosm of what could happen-and indeed may be happening– even among the more knowledgeable members of our national government, -IF, IF a sitting president did not have unfettered control and final authority over declassification of material, including that related to national security, and as acknowledged by DOJ itself.
    To that end, it seems that whatever methodology employed by a sitting President to effect these determinations may be irrelevant, –as long as the material remains in his control. Once a sitting president has made such determination, the PROBLEM appears to be one of NOTICE to others, those with a “need to know,” -including the originating agency. I say “appears to be” because this is conjecture on my part, I had a security clearance years ago when I clerked for the DOD, but that was in the 90s.

    1. 11th Circuit:
      “… Plaintiff’s effort to raise questions about classification status is a red herring. As the government has explained (Mot. 15-17), even if Plaintiff could show that he declassified the records at issue, there would still be no justification for restricting the government’s use of evidence at the center of an ongoing criminal investigation. Again, Plaintiff offers no response. Plaintiff likewise fails to rebut the motion’s showing that the injunction is irreparably harming the government and the public. …”

      1. Your comment is wholly non-responsive to the gist of mine.
        I did not say a word about the 11th Cir. opinion; neither does that opinion have anything to do with my comment.
        Nor did I opine as to gov’t’s use of such documents for criminal investigation, -I was expressly talking about the constant back and forth ON THIS BLOG SITE about the classification or declassification of documents (and parallels to national arguments among “legal experts”). thanks anyway.

        1. My point — which is the same as theirs — is that the back and forth about classification is a red herring.

          You are, of course, free to indulge that red herring here.

          1. Anonymous: I repeat: I am not talking about either Trump or the 11th Cir opinion. Apparently you are, which has nothing to do with my original comment. You’ve created your own red herring with your numerous comments about Trump being in possession of stolen classified documents.
            OUTSIDE of my original comment and your irrelevant comment, we both agree that the 11th Cir. finds declassification irrelevant to access for criminal investigation. No more, no less. thanks anyway

            1. –(and I will, as always, let you get the last word in, so you will not erroneously interpret my subsequent silence as acquiescence.) thanks

    2. Last time I checked the government has to prove Trump guilty, this case is about Trump proving himself innocent. The entire process has been flipped on its head. Trump’s team’s response should be “Prove I didn’t”. That is how our system of justice is supposed to work. But all laws and norms have been flipped on their heads to get Trump. What are they so afraid of? My guess is that he has shown how corrupt every institution of government in the US is and he, in his second term was going to dismantle the corrupt agencies and either fire or prosecute the guilty traitors in the bureaucracies.

      1. Trump has filed a claim in civil court. The burden of proof in motions and petitions is on the moving party.
        In this case Trump, but the standard for civil cases is low, and for non-final motions even lower.
        The 11th circuit court of appeals improperly elected to accept an appeal by DOJ.
        In an appeal the burden of proof is on the moving party also – but it is a much higher burden.
        Contra the 100th circuit court of appeals Trump is not even required to defend.
        The starting point for an appeal is the assumption that Cannon’s preliminary orders are valid.
        The Burden is solely and completely on the DOJ to disprove that.
        Further, nearly all appeals and particularly this one on on the LAW, issues of fact must all be assumed in favor of the non-moving party.

        In the end the result was highly unlikely to be different.
        But the 11th circuit court of appeals should not have taken the appeal and should not have ruled on the facts.
        They should have waited for the SM to resolve the issue, which he was doing.

    3. Turley reveals some scepticism about the President’s executive authority over declassification, but avoids the alternative question: which bureaucrat has been bestowed with the executive authority to contradict the President on a matter or manner of declassification?

      Recall JFK showing classified photos of Cuban missile sites on national television. Those photos were pulled from an envelope with Top Secret markings, and they were the Crown Jewels of our spy satellite programs. Had anyone else done that, they would have been committing multiple felonies. But for the president, those photos became ‘magically’ declassified at that instant, by the mere fact that the President himself turned the pictures towards the TV cameras.

  2. “If a president could declassify with a thought, he could literally declassify every document in the possession of the U.S. government with a constitutional Jedi-like power. No one would know that there was declassification other than the fact the he removed the documents or treated them as declassified.”

    And yet, if you read the SCOTUS decision on Navy vs Egan, that is precisely what they are saying. They are saying that neither Congress nor SCOTUS itself has any Constitutional power to limit, control, direct, nor criminalize any decisions POTUS makes regarding the handling or classification of national secrets. Without such limiting powers, it is obvious that POTUS literally could declassify everything “with a thought.”

    Now on a more practical note, it does stand to reason that if POTUS literally wants mountains of classified material in the possession of government declassified then he must communicate that decision so those in possession of those documents are aware and may re-file them appropriately. However, that is not this situation.

    President Trump took documents for his personal use. The notion that that can somehow be “a crime” requires the extremely delusional assumption that, in the exercise of their recognized Constitutional powers, POTUS (or any other elected official) could “make a mistake” placing them in legal jeopardy from another branch of government. The notion is prima facia absurd, and violates the separation of powers. It would be like saying SCOTUS judges must go to prison for ruling one of Congress’ laws unconstitutional – Congress literally has no power to pass such a law, so in the case of a POTUS “giving” themselves documents to take into retirement it MUST be presumed they performed all the actions (declassification, authorization to possess the documents) to do so.

    1. The alleged crimes are refusing to return documents with classified markings that were subpoenaed by a grand jury and obstruction.

          1. It is not about admitting it.
            We have been through this before.
            You are wrong.
            You are reading things into the law that are not there
            and missing things that are there.

            A crime is still AN ACT.
            There are few rare exceptions and the Espionage act contains none of those.

            Can you point out a single instance anytime anywhere where any person has been prosecuted for mere posession.

            Even the portion of the law you hang you hat on – unauthorized possession is ONE element,
            One which in Trump’s case – you STILL have not met.

            This nonsense with left wing nuts like you constantly making up the law makes rational discussion impossible.

            God forbid anyone should give you any power in a criminal context.

            Your arguments are also complete idiocy. Clinton had actual unauthorized posession of thousands of classified documents and was not prosecuted. She was not prosecuted for possession – because that is NOT enough.
            Mere posession – particularly authorized possesion which you clearly have in Trumps case absent proving actual theft AFTER Biden’s inauguration, She should have been prosecuted for butting those documents onto the internet, for providing the to unauthorized people, for acquiring them illegally, for allowing them to be copied to Huma Adedin’s laptop. These are all ACTS.

            Do you have a single illegal ACT ?

            1. As I said: there are ALLEGED crimes that were the basis for the warrant. I did not say that Trump would be indicted. You cannot admit that the warrant ALLEGES crimes.

              Also, 793e is not based on “mere possession.” It literally says “Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it …” We know that the documents were subpoenaed AND Trump willfully retained them.

              “Do you have a single illegal ACT ?”

              Yet again: refusing to turn over subpoenaed documents is an act under our laws.

              Obstructing an investigation is another act under our laws.

              A judge read the entire affidavit and determined that there was probable cause that these crimes had been committed. Will Trump be indicted for these crimes? We will have to wait and see. Thanks to the 11th Circuit stay, the FBI can now continue its investigation.

      1. “refusing to return documents with classified markings that were subpoenaed by a grand jury”

        Before you drain your brain thinking of the crime you need to get your dates straight. The FBI picked up records after the Grand Jury Subpoena. You have problems with dates. You have been trying to pass off an August 2022 press release as if it came a couple of years earlier.

        One can’t trust you .

    2. POTUS can not declassify with a thought, because even the constitution requires the president to ACT to excercise power. The presidents constitutional powers with respect to national security are unlimited, but they are not metaphysical.

    3. For there to be a crime
      Trump must have moved the documents AFTER he was no longer president,
      as the president has the power to move classified documents anywhere.
      Or he must have done something with them at MAL – such as sold them to the Saudi’s
      In BOTH cases the documents must NOT have been declassified

      Given the evidence we currently have there is no probable cause of a crime, and therefore the warrant was unconstitutional.

      The burden of establishing the legitimacy of the warrant rests on DOJ. That is more than a legal burden that can be met in secret with a magistrate. The damning evidence of prior politicization of the FBI/DOJ requires that DOJ/FBI prove their actions are not political to the PUBLIC, NOW.

      That proof is far more important that catching Trump, in the unlikely event he actually committed a crime.

      It is more important that the people KNOW that our law enforcement is not tainted by political corruption that that a dozen criminals go free.

      It is likely more important that the people KNOW that our law enforcement is not corrupt, than protecting whatever secrets these documents contain.

      If these documents are the collusion delusion documents that Trump declassified THIS GOVERNMENT MUST FALL.
      That is a REQUIREMENT of the declaration of independence.

    4. What is occuring with Trump right now is much like DeSantis’s exposure of the hypocracy of the elites at Martha’s vineyard.

      Democrats impeached Trump for acts that are far less egregious and far more justified.

      Yet we were told that it did not matter if there was evidence of misconduct by Biden – Trump could not go after him.
      Now Biden is using the actual power and tools of the executive – DOJ/FBI to go after a political enemy WITHOUT evidence. and democrats no merely think that is OK they are cheering it on.

      There is a real legal standard to be met that establishes whether an act that has political benefits is otherwise legitimate. And that is whether there is probable cause that a crime has been committed.
      There is obvious probable cause regarding Biden family corruption.
      There is so far not an actual crime alleged regarding Trump.
      There is no credible allegation that he stole anything, there is no credible allegation that he provided anything to anyone not entitled to have it.

    5. Of course he could declassified all docs with a thought, but he would only remove those classified docs that were important to him — not just boxes and boxes of paper.

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