The Washington Post is reporting that there was a heated debate in the Justice Department over the decision to raid Mar-a-Lago in July 2022. The senior FBI agents objected that they believe that a consensual search was possible without the necessity of a raid. It was main Justice officials who overruled them and insisted on the raid. What is most striking about the account is that FBI agents were raising the very concerns that some of us voiced after the unprecedented raid on the home of a former president.
The Post describes a “tense showdown” a week before the raid. Jay Bratt, Chief of the Counterintelligence and Export Control Section (CES) of the National Security Division, joined other Justice officials to demand a raid. He was accompanied to the FBI by Assistant Attorney General Matt Olsen as well as two counterintelligence officials, George Toscas and Alan E. Kohler Jr.
Toscas previously worked on the Crossfire Hurricane and Clinton email investigations. He reportedly pushed for a raid.
The FBI pushed back hard, according to the Post. Steven M. D’Antuono, then the head of the FBI Washington field office was running the investigation and said that he considered the raid to be unnecessary and overkill. He wanted to arrange a consensual search. He reportedly even refused to conduct the raid without a direct order.
D’Antuono wanted to reach out to Trump’s lawyer, Evan Corcoran, who is a former Justice Department prosecutor to arrange the search. Reportedly, the objections angered Bratt and the meeting became loud and heated.
Notably, the Post reports that D’Antuono “also questioned why the search would target presidential records as well as classified records, particularly because the May subpoena had only sought the latter.” It quotes him as objecting “we are not the presidential records police.”
Finally, D’Antuono reportedly demanded to know if Trump was officially the subject of the criminal investigation. As head of the FBI investigation, that was a telling question. Bratt reportedly replied “What does that matter?”
It mattered a great deal. A number of us expressed surprise later that presidential records were such a focus of a criminal indictment. Presidential record disputes are ordinarily administrative or civil matters. It turns out that the FBI itself shared that unease.
While it took long negotiations, the Trump team had previously turned over boxes of material to the National Archives. In January of that year, they returned 15 boxes of government records, including 184 classified documents consisting of 700 pages. The Trump team had also agreed to give the FBI access to the storage room and complied with directions on adding security to the room.
When classified documents were found by both Biden and Pence after the Trump raid, they were also not subject to search warrants but allowed to have counsel look for additional classified material. In all three cases, the FBI seemed to approach the controversies as collection rather than criminal efforts.
However, Bratt and the other main Justice officials were unwilling to seek a consensual raid and maintained that the Trump team might move to hide or destroy evidence. Such actions would, of course, constitute serious federal crimes.
The fact is that highly classified documents were found at Mar-a-Lago and past representations made by counsel were later challenged by the FBI as false. The Justice Department told the court that it believes that there was an effort to obstruct their investigation.
What is striking about the report is the preference, yet again, for the Justice Department to take the DEFCON 1 option over other alternatives in a matter involving Trump. If D’Antuono was allowed to seek a consensual search, any refusal would have largely blunted any later objections. Yet, the FBI General Counsel Jason Jones (who replaced the controversial James Baker at the Bureau) followed his predecessor’s more aggressive approach.
The report will only deepen the unease over how the Justice Department will handle the classified document controversy. Since the raid, President Joe Biden and former Vice President Michael Pence were both found to have classified material in their private homes. In the case of Biden, some of these documents go back over a decade to his time as a senator and were found in multiple locations from a university center office to his personal library to his garage.
While special counsels are investigating Trump and Biden on the matters, the ultimate decision will rest with Attorney General Merrick Garland who must decide if prosecution is in the public interest. Few people want to see Biden, Pence, and Trump indicted. Indeed, the Justice Department maintains that it cannot indict a sitting president like Biden. To prosecute only Trump for such unlawful possession would cause a public uproar.
Yet, some of us have long said that Trump’s greatest threat was the obstruction allegations out of Mar-a-Lago. One of his lawyers is reportedly cooperating with prosecutors. Those allegations do distinguish the Trump case, but it was also undermined by the Biden and Pence matters. In both cases, the FBI was also told that counsel or staff also conducted searches and found no additional documents before further discoveries were made. That does not mean that Trump’s conduct could not be found to be knowing and more culpable. That case will have to be made with undeniable clarity and evidence.
Garland may face this tough call within the year. Polls indicate a deepening distrust of the government and the Justice Department in particular. A fifth of Americans now view the government as the greatest threat facing the nation. Fifty percent of Americans only trust the FBI “some of the time” or “hardly ever.” These polls are consistent on roughly half of the country expressing distrust in the FBI. What is truly shocking is that 53% in one poll agreed with the statement that the FBI acts like “Biden’s Gestapo.”
I have previously testified that these views are unfair to the many agents who put their lives at risk to protect us and the rule of law. However, this deep distrust is only worsening as we head into what could prove the most divisive and potentially explosive election in modern history. Of course, Garland could channel Bratt’s reported approach and just say “what does it matter?” But it matters a lot if Garland is concerned about the public accepting that justice rather than politics is being done.
The Biden team could have moved or destroyed evidence, as well. This is why a consensual search by the FBI, would have been appropriate in all cases.
Democrats have a hegemony in the 3 letter agencies, and abuse their power to target political opponents. Trump has been public enemy #1 of Democrats since he declared he was running for 2016. For over 6 years, Democrats have abused their positions of authority to try to find any crime Trump could possibly have committed, even declaring that foreigners paying the going rate to stay in a Trump Hotel violated the Emoluments Clause.
It’s Stalinesque.
Complaining about it won’t bring change. These activists in control don’t care what critics think. They can either get away with abuse of power, or they can’t. How anyone feels about it is immaterial.
Since when do FBI agents “protect us? Their role is investigating Federal crimes – period. They don’t protect anyone except themself.
The theory – and at this point it’s only a theory – is that the FBI protects innocent people by investigating crime and catching the bad guys. These days, the reality is very different.
What is truly shocking is that 53% in one poll agreed with the statement that the FBI acts like “Biden’s Gestapo.”
Uh, yeah, because it does. The statistic didn’t shock me. And it shouldn’t shock you.
And I’m not just talking about the Mar-a-Lago raid. The Biden administration is rabidly pro-abortion, so the FBI ends up sending a SWAT team to physically take down a pro-lifer, in front of his wife and kids, for the violent crime of sitting on a sidewalk outside an abortion clinic . . . all on trumped-up federal charges that they could not even get a conviction on. And this after local authorities having investigated decided there was nothing there. The effort was not so much to get a conviction but to send a message of pure intimidation courtesy of the Gestapo, er, I mean the Biden Administration. It will be generations before a majority of Americans trust DOJ and FBI, if they ever do again.
Note: in the above I don’t refer to Biden but the Biden administration. That is because Biden is senile; it is his puppet masters behind the scene who are the satanic force in this nation.
Undoubtedly a Rasmussen push poll.
The standard is not “public acceptance”.
It is the law as blindly applied – to Trump, To Biden, To Pence.
Where the law is not applied without political bias it is law enforcement that Deserves to be on trial.
Further I completely disagree with your claim that Trump should have a unique and significant risk for failure to cooperate.
There is a gigantic difference between Trump, Pence and Biden concerning classified records.
Biden has absolutely ZERO legitimate claim to possession of classified documents as a Senator.
That can not occur without violating the law.
Biden and Pence have very limited credible claims to personal posession of classified documents as Vice Presidents.
While they retained their unlimited security clearances, they have almost no possible claim to declassify or to ownership of the classified materials they posessed.
But for the fact that we know Biden acquired these documents as Vice President, Biden could have tried to make a legitimate claim based on his current status as president. But he was not president until 2021.
Conversely Trump as president had both limitless power to declassify, and near limitless power to take ownership of presidential documents. He has consistently argued BOTH that these documents are his personal property AND that they are declassified. The caselaw strongly supports both of those claims. As well as the additional claim possible claim that they are still classified but his property – atleast that is the clear implication of ABJ’s holding in NARA V. JW.
I think there is a compelling reason that the Biden administration never persued any Civil effort to retrieve these documents.
The would have LOST and that would have ended this.
Absolutely none of that applies to Biden or Pence.
Finally there is one other significant distinction.
Trump’s allegedly classified documents were found in the SCIF in MAL or in the Presidential Offices at MAL.
These are both locations that classified documents could have legitimately been located while Trump was president – even if Trump was not at MAL. They are also places that Trump could have legitimately kept classified documents that he requested and was provided by he Biden administration – not that Biden would have allowed that – Unlike all other former presidents. The point being they were stored with the same degree of security and care as they had been when Trump was president. the SCIF at MAL and the presidential offices there do not magically become insecure on jan 21, 2021,
Conversely Pences and Biden’s documents were all in places they could not have legitimately been – even while they were vice president. In a private think tank, in a garage, in a living room.
The argument that the Trump case is different is absolutely true.
Biden and Pence were not president when they took classified documents. Their best and possibly only deffence is exactly what they are offering – claims of inadvertance – which may hold up for Pence, as well as cooperation – because they have virtually no legitimate claim to posession.
Trump does. The ABJ NARA v JW decision is pretty unequivocal. She rejected every argument of JW as irrelevant – including the likely correct claim that the tapes contained classified information. Clinton posessed the tapes, he took them when he was president, her decision is not only are they his personal property, not only doesn’t the government have any power to do anything about that, but even the courts themselves can not 2nd guess the president.
Some idiots here have argued that is not a supremecourt decision or an apelate court decision.
That is absolutely true. But it is the current state of the caselaw – and Trump and his lawyers are ENTITLED to rely on that.
They MIGHT lose in a different court, or on appeal or even at the supreme court – in which case the caselaw would change.
But you can not criminalize reliance on caselaw that is subsequently overuled.
And that presumes what is unlikely – that a different court would overrule the JW V NRA decision.
That is just the tail end of a series of cases on this issue.
It is solid law that the government may go to court to seek access to the documents of former presidents and the standard for the court granting access is very low.
It is also solid law that the ownership of the documents of expresidents in their posession is THEIRS.
Classified or not.
Ownership and access are not the same thing.
DOJ/FBI were not seeking access, they were seeking posession. Which they law does not give them the right to.
Case law applies to a specific and narrow set of facts. The fact that Trump knew the documents were United States of America property, not his. He then tried to hide them from both the National Archives AND the FBI.
Skippingdog – Although a case comes with a “specific set of facts”, they may be interpreted to present a general question of law. In its ruling, the court can attempt to narrow or widen the effect of the decision. Based on John Says’ discussion, Judge Jackson did not seek to narrow the effect of her ruling. You also state that Trump “knew the documents” were property of the US Government. Which property exactly? There can be a dispute as to whether documents that the President has always possessed and which he/she takes with him/her upon leaving office are “Presidential records” or the President’s property. Apparenlty, Judge Jackson ruled that the President’s determination on this point is final and unreviewable. You then say that Trump “tried to hide them” from the NARA and the FBI. In what way? He turned over 55 documetns of documents to NARA and allowed the FBI to inspect the storage faciiilty at MAR. He accepted the advice of the FBI in holding them more securely. Compare this conduct to that of Hillary Clinton, who actually did hide documents from the FBI and did professionally destroy the computer hardrive that held them, after secretely transfering them to a computer held by her aide, Huma Abedan. The DOJ did not even file a misdemeanor charge against HRC. It is not acceptable to say, if you about to, that it is a diversion to talk about Clinton. NO. Whatever standard was applied to Clinton must be applied to Trump. If that means that there is no legal standard left to apply, that is fine. In any event, the law regarding possession and handling of classified documents, and possessiion and definition of governement-owned documents, needs to be clarified and then applied to equally to members of all political parties.
I agree with you that we need clarification – though the issue is more constitutional than law, which means the clarification must come from the courts – specifically SCOTUS.
That said – absent clarification – anyone can argue anything they want.
But presidents, and ex-presidents are ENTITLED to rely on JW v. NARA.
Future courts can overrule Judge ABJ – though she is just the tail of a whole series of decisions, making that less likely.
But they can not criminalize ex presidents relying on JW v NARA.
The distinction between the Rule of Law and the Rule of man, is that people can disagree on the meaning of the law,
But at any given time, the law must mean what the most authorative court last decided. And that all of us can rely on that – even as we try to persuade the courts that decision was wrong.
I would note another relevant issue here – we are getting into areas where there is ambiguity specifically because no one tried to challenge this before.
Democrats and the left are excercising great legal creativity to “get Trump”.
That all by itself requires that Trump prevail.
Creative application of the law – is nearly always wrong, regardless, can nver be criminally applied retro actively.
If SCOTUS found tomorow that ABJ’s decision was overly broad, that courts have judicial review over what is a presidential and personal record, that Trump is wrong and must turn over everything, the still could not decide
“And it was criminal for Trump to rely on ABJ’s decision”
You can not have the criminal intent to commit a crime, when the state of the law – no matter how poor is that there is no crime.
JW v NARA holds that any presidenial record that a president choses to be a personal record is.
And that the presidents decision to do so is not judicially reviewable.
You are free to beleive that JW V. NARA is wrong, you can make possibly even good arguments that is the case.
But at this time it and the cases that preceded it on the same lines are the only law we have.
And even if you were to prevail in your arguments at SCOTUS – which is not likely, because ABJ’s decision rescues the PRA from being unconstitutional, you STILL can not get criminal intent out of relying on the only series of judicial decisions on an issue even if SCOTUS eventually reverses.
You say Trump KNEW the documents were US property – that is false. And obviously so.
JW v NARA says that if the president says it is his – it is his.
You are free to disagree. You are free to challenge that in court.
But the Biden admin did not do that.
They deliberately sought to avoid the issue of ownership of these records – because they would likely lose,
and game the system.
And that is precisely what weaponizing government for political purposes means.
John Say – This is an interesting discussion and you almost persuade me that Trump could have declassified the documents in his possession by taking them. Since the current law does not expressly state how a President effects de-classification, it is arguable that the President’s physical act of maintaining possession of documents when leavng the WH converts the documents into both declassified and “personal”, assuming that was his/her intent. (I am careful to add “her” because I am hopeful Tulsi Gabbard runs as a Republican and becomes the first woman President, a position for which is qualified by her character and not her sex.)
I wrote a long response, but the gist is – much of this is not about the law.
It is about the constitution, and separation of powers.
Congress can not pass laws that change the Article II powers of the president.
That is at the root of the courts reading out of the PRA several clauses that appear damning.
Svelaz is Correct that the PRA clearly states presidential records are the property of the Government.
Though there is some small lattitude for the president to define SOME things as personal.
The courts have solved the constitutional problem of congress meddling in the Article II powers of the president – either by ignoring the laws defintion of what is an is not personal, and allowing the president to declare ANYTHING personal.
This is no MY view, it is what the courts have done on SEVERAL occasions.
What is the ex-presidents property – is a constitutional powers of the president issue.
What is classified and how things are classified and declassified is a constitutional powers of the president issue.
And this is also Why the 11th appellate court is dead wrong – because it absolutely positively matters that this warrant, was on a former president, because every single fact and law is different because there is an intersection with constitutional presidential powers.
To a much smaller extent some of this is true with respect to Vice presidents – there is mirroring cases regarding vice presidents, but the constitutional power of the VP is a small fraction of that of the president.
It is also an odd an unsettle point of constitutional law whether the Vice president is part of the executive or Congress – as he is the head of the Senate, and can vote to break ties.
I have always found Tulsi interesting – even when she was solidly democrat she was still one of the most rational and thoughtful democrats I know.
She is far more interesting now. I do not know what her ambitions are – though I think it is pretty obvious that she wants and has a big voice on the national stage.
With respect to Decalassification – it is not the law that matters, it i the constitution.
There is a reason that the classification and declassification process are all in executive orders.
This is the same reason that the court decisions regarding presidential documents are clearly completely at odds with the Presidential records act.
And that is these things are all in the exclusive or near exclusive powers of the president according to the constitution.
I do not personally honestly care whether the papers of a president belong to that president or the government.
Nor do I care whether the process of classification and declassification are the exclusive perview of the president or of congress.
Nor am I entirely convinced that the constitution delegates those and other presidential powers exactly as the courts have thus far claimed.
But these debates are about Two things – What is the current state of the law and constitution, and what can those acting rely on.
An example of the latter is the ABJ decision NARA v JW. First that is not a standalone decision – but one in a line of prior decisions in the same area reaching the same general conclusions.
Several have correctly pointed out that JW v NARA is a DC circuit opinion – it is not binding.
But they are wrong when they claim that other courts can ignore it. Further nearly all decisions regarding presidential papers are likely to be made in the DC circuit, and other circuits are highly likely to defer on those issues.
Still it is entirely possible that if the Biden DOJ challenged the decision – that SCOTUS might come to a different conclusion.
Or even if the JW v NARA decision was a SCOTUS decision that SCOTUS might reverse itself.
You can ALWAYS argue the courts got it wrong – and there is always a small chance you will prevail in that argument.
Svelaz and others debating me on this issue MIGHT be right that the courts will reverse or ignore JW v NARA.
It is not impossible. it is just highly unlikely.
But that still ignores the problem of reliance. the courts can reverse ABJ, They CAN NOT impose liability on Trump or anyone else for acting within the bounds of case law at the time prior to that reversal.
Nor is this about Trump. Every living president is free to rely on JW v NARA in their handling of Presidential papers.
A future court can say – “No, No, you are Wrong – JW v NARA was wrongly decided, Carter, Clinton, …. Trump must give back whatever DOJ is demanding”, But they can NOT say – and it was an intentional Crime for you to rely on JW v NARA.
That latter part is critical – The entire left can debate who owns presidential papers until their eyes pop out.
Living ex presidents are ENTITLED to rely on JW v NARA until it is overturned. They are entitled to rely on it Civilily and even more important they are entitled to rely on it criminally.
And this isone of the major reasons the 11th cir ct of appeals is full of Schiff.
JW v. NARA ultimately says that the MAL Warrant was unconstitutional.
That the courts do not have jurisdiction over presidential papers – classified or not.
The 11th appeals completely ignored the argument over presidential papers.
There most fundimental error was in saying that the fact that Trump was president was irrelevant.
The law and constitution, and this entire issue is SPECIFIC to the fact that Trump was president.
The 11th appeals could have decided that JW v NARA was wrongly decided and they have jurisdiction.
But they could not decide that it and the issues addressed by it could be ignored.
Returning to Your issue – What is the power of the president to declassify.
My argument – and that of WaPo, NYT – several years ago, when they were less nuts,
and when they were still contemplating that whatever they claim could apply to democrat presidents also,
as well as my understanding of the state of the law – reflected by what caselaw we have – which is not much.
It that the power of he president to classifiy and declassify comes from his constitutional national security powers and is therefore NOT subject to congressional constraints – i.e. the law.
AGAIN – the courts could ultimately decide that is WRONG, But AGAIN what they CAN NOT decide is that following that premise is Criminal.
There is an elephant in the room – which the 11th appelate got wrong, and that is that every single issue we are dealing with is Unique to Presidents. There is ZERO doubt at all that Sen. Biden could not own or possess classified information outside a governemnt fascility. There is a Very small window in Which VP Pence and VP Biden could claim ownership and/or right to possess classified information – with significantly greater right to possess than right to ownership. But even legal posession, without ownership would still REQUIRE complying with the law regarding the protection of classified information.
There is no circumstance in which an ex vice president can legally have classified information in their garage, a private think tank or their library. But they COULD legally have it in their ex vp office and SCIF. There is in Obama’s EO provisions for ex vp’s and ex presidents to possess classified information – so LONG as they continued to follow classified document handling procedures.
Senators are not different. ex-vp’s are a little bit different. But Ex Presidents are RADICALLY different.
You can not just apply the law to them in the same way that you can to the former CIA director.
And every court that has done so, has ERR’d. Ever Reversing JW v. NARA still requires addressing the FACT that ex-presidents are different.
As to Can a president declassify material merely by moving it to an insecure location.
The closest thing to caselaw on this I am aware of is AGAIN JW V NARA – where ABJ Conscieously rejected the claim that her decision could be different if the material was classified.
While she did not address whether Clinton’s tapes became automatically declassified when he put them in his sock drawer,
She did assert that IT DID NOT MATTER that they were classified or not – they were Still Clinton’s personal property.
I think the rational conclusion is that they are declassified. But even if they are not – ABJ did not find that Clinton had a duty to protect them either. ABJ’s decisions did not clearly answer alot of questions we have. But it Clearly Answered whose property the tapes were – the ex presidents.
There is only one hitch applying any of this to the Trump/MAL case.
And that is the distinction between Presidential records and Federal Records. The courts have been clear – Presidential records are outside the jurisdiction of the courts. Federal Records are NOT.
The distinction is somewhat Fuzzy – but generally a record created by a part of the executive branch created by Congress (rather than the constitution) is a Federal Record, while one created as part of a Presidents Article I powers is presidential.
We can not at this time address these questions – because we have no clue what actual documents Trump and DOJ are fighting over.
The president can declassify ANYTHING on their own authority – there is no rational debate over that.
I beleive I am correct that the president can do so merely by consciously choosing to place a classified document in an insecure state. I do not beleive as Trump has claimed that he can do so clairvoyantly.
There MUST be an ACT – even if that ACT is nothing more than “I declassify thee”.
I would note this came up in the Hillary Clinton matter – because Obama was communicating classified information to Clinton and others via an AOL account. Most did not make a stink over that. It is shocking and arguably careless – but Obama was the president. He can do that.
Finally – though this is more ambiguous than JW V NARA – the president and ex presidents can RELY on their near infinite power to declassify UNTIL a final court decision that says otherwise.
And even a decision against a president or ex-president can not retroactively make conduct their beleived legal illegal so long as that beleif was reasonable – and inarguably it is.
So what you have is the president can declassify anything.
He can OWN anything that is a presidential record but he can not own what is only a federal record.
And finally, an ex president can POSSESS rather than own classified records.
So for every single document DOJ confiscated there are possibly 3 tests that have to be made.
If (presidential record) {
If so it is Trump’s property by JW v NARA – whether it is classified or not.
DOJ/FBI can demand ACCESS – but they must go to civil court to do so.
} else if (Federal Record) {
Trump can posess but not Own – the government can demand it back. Classified or not
If (marked classified) {
if (declassified) {
Trump has no duty to protect
} else {
Trump retains a duty to protect.
}
}
}
,
Well I think Wray needs to chart a more independent course if he wants to save the FBI from getting disemboweled by Congress. The problem here is the Attorney General who seems particularly corrupt to allow this politicization to run amok. He has stacked the DOJ with these political operators so it’s no surprise to see them run their political assassination operations. To bad there is no law against what these assassins are doing. I’m sure their texts, VM’s and emails would be extremely revealing.
Little by little democrats are destroying our rule of law and replacing with a communist style of law . Need proof DOJ , FBI , Jan 6th committee all thumbing into the face of America .
That’s just ignorant and stupid. You should be ashamed of yourself but, since you’ve already sold out any honest ideals you may have had for your orange savior, I’m confident you’re unable to judge your own behavior.
It is clear that under previous SCOTUS ruling of Presidential Records Act that Trump had declassified everything he had in his possession. As a Former President he is built a secure office with a vault for documents and has Secret Service monitoring them at Mar-a-Lago. These “so called classified” documents were secure and when asked by the FBI Trump added more security so the raid was just harassment.
Assuming you are correct, you don’t actually approve of this type of de-classification en masse do you? It shows poor judgement.
And in any case the papers remain government property. Presidential documents are supposed to go to the National Archives — classified or not. Trump and his staff may be ignorant as to what constitutes Presidential documents. It wouldn’t surprise me. But he doesn’t get to keep them.
They shared that unease but they didn’t do a goddamn thing. On the contrary, they raided Trump’s private residence. Sorry, this excuse making is nauseating. Chris Wray and Merrick Garland need to prosecuted as the criminals that they are.
I can’t believe there’s anyone here who refuses to recognize that the situation at Mar-a-Lago was unacceptable.
Yes, the DOJ and FBI have lost their minds. And not for the first time. But to my knowledge, the Presidential Records Act does not require intent. I appreciate its nature is not criminal. I’m not going to go all TDS. But the way things were shuffled from the White House to Mar-a-Lago was amateur hour.
I can think of nothing more nauseating than looking at a Presidential ballot with the two choices of either Biden or Trump. If that’s what I’m faced with, I’ll be writing in Pat Paulsen.
Pat Paulsen? Could you please realize this is nothing to joke about. Pat Paulsen has been dead for years. I’ll be writing in Snoopy!
“Pat Paulsen has been dead for years.”
What, that disqualifies you now?
Not from voting only from running…..unless you’re a transvestite.
“I can’t believe there’s anyone here who refuses to recognize that the situation at Mar-a-Lago was unacceptable.”
There are a lot of things one can say are unacceptable. A lot of things don’t make sense to someone on the outside so we need more insight. Precisely what did you find wrong that was unacceptable?
Well you just don’t ship Presidential records en masse to your own residence. They just moved stuff carte blanche from the White House to Mar-a-Lago. Presidential documents, even if they’re notebook doodles, are supposed to go to the National Archives. And even if you accept Trump’s massive declassification as legal, it certainly doesn’t show good judgement.
I will accept Mar-a-Largo as a better place than one’s “locked” garage for sinsitive document. But it’s still inept.
” you just don’t ship Presidential records en masse to your own residence. “
They weren’t shipped en masse. I am sure Trump had a reason for shipping the records and leaving others behind. Secondly, Trump didn’t do the packing. Third, that was a residence, a workplace, and a SCIF. You only mentioned one of the three.
” are supposed to go to the National Archives.”
Presidential records are the President’s. Note the case law on Clinton’s records. If you feel the law is wrong, change it.
“And even if you accept Trump’s massive declassification as legal, it certainly doesn’t show good judgement.”
What did Trump declassify that shouldn’t have been declassified? If you can’t answer that, then your premise is wrong. I believe too much is classified, such as the Russia Hoax documents still waiting for release. Many records are pending release with expected dates calculated at a decade in the future. Confidentiality is used by people to protect themselves from malfeasance. We should be demanding more declassification. How can American citizens vote without knowing what happens in our government? We are supposed to be a Constitutional Republic and democracy where such secrecy prevents that from being realized.
“But it’s still inept.”
If you consider the President having records to work on at MAL inept, where would you want those records kept when Trump spent his time in MAL? He did important work there.
“Presidential records are the President’s. ”
I don’t know where you got that idea. They’re government property under the Presidential Records Act. There is no dispute about that. And there is no disputing Trump had massive amounts of government property. So I don’t know why you think there was any method in which things were moved. You have ineptitude here — which should surprise no one.
“I don’t know where you got that idea.”
I am overstating my case just like you because your words indicated we had to create clear lines of contrast in a murky situation. If it were up to me, the records would be public, Obama’s records would be open, and FOIA requests would be immediately complied with. So far Trump’s declassification and order to open Russian Hoax documents is not effectuated.
You say there is no dispute forgetting that the PRA is a bunch of rules that are not necessarily constitutional and might conflict with other laws or understandings. [see Judicial Watch v National Archives]
There is no provision for the National Archives to seize a former President’s records. The other difficulty your argument has is the President decides what is personal and what are official records. Many argue that documents in the hands of a former President are presumed personal.
You are incorrect if you think these things are decided. Let me add just one of Judge Jackson’s comments, “Under the statutory scheme established by the PRA, the decision to segregate personal materials from Presidential records is made by the President, during the President’s term and in his sole discretion,”__Jackson
The ineptitude is yours in not recognizing the muddy waters you are in. The situation at MAL was more than acceptable. What isn’t, is the DOJ’s response by raiding MAL. The proper response is not a raid but taking the problems to the courts. Do you not understand that is how we resolve civil questions of law?
Unanswered questions:
1)What did Trump declassify that shouldn’t have been declassified?
2)Where would you want those records kept when Trump spent his time in MAL?
I want to address a few of your points.
You are incorrect in saying many of these issues are not decided.
JW V NARA and a whole tree of prior cases decide that.
There is no Doubt at all what has been determined.
What is “not decided” is that apellate courts and SCOTUS have not spoken on the issue.
Because no one so far has appealed.
Those who disagree – DOJ/Biden/The left are free to go to court AGAIN and bring a new challenge.
And who knows it is possible they will get a different outcome.
Even if the Supreme court had previsiously decided an issue – it can reverse itself.
But that is not common.
Regardless, the current state of the law is NOT unclear.
And the courts have resolved it in THIS Fashion.
The PRA is constitutional – with respect to everyone EXCEPT the President.
It is constitutional With respect to the President
If and only if – The president decides what records are personal and which are not.
While the PRA dictates how that decision is to be made, the decision is solely the presidents and is not reviewable by the courts.
Whether the documents in question are classified or not has NO BEARING.
As far as the courts are concerned the President can make a classified presidential document personal,
merely by putting it in his sock drawer. that analogy is the courts – not mine.
Next neither NARA nor any other part of the federal government has any power at all to review, reverse or take posession of anything that a former president decided was personal while he was president.
All the above said – the current government can go to court – and almost any claim is sufficient for the court to require the former president to provide ACCESS to his Records. Presidenial records in the posession of a former president are OWNED by that president. But that changes nothing with respect to the power of the current administration to ACCESS those records.
But ACCESS is NOT on demand – it is by court order only, however the standard that must be met for ACCESS is pretty low.
There is todate no instance in which a court did not give the current administration ACCESS.
That covers anything that meets the Constitutional defintion of “presidential records” (NOT that of the PRA).
Constitutionally a presidential records is a records created by the executive branch But NOT by an agency created by Congress. Records created by agencies of congress are Federal Records, not Presidential Records.
It is highly unlikely that any of the non-classified records Trump took are Federal Records, They are likely all presidential records.
But there is good reason to beleive that the Classified records are Federal Records, rather than Presidential Records.
FBI Records are Federal Records. The Cross Fire Huricane Records that Trump declassified are Federal Records NOT presidential Records. At the same time they were publicly declassified by executive order. Trump can not “own” a Federal Record – classified or not. But if it is not classified he very likely can make it public – just as an ordinary citizen in possession of a declassified Federal Record.
Simplifying – There is ZERO issue at all regarding Anything that is a Presidential Record – as The COURTS (not the PRA) have defined. If it is in Trump’s posession it is his personal property and no one can do anything about that.
It does not matter if it is classified or not so long as it is a presidential record. And they only thing that Biden/DOJ can do is gain ACCESS.
If the documents are Federal Records – rather than Presidential records – Trump can not own them – though he can possess them. If there are Federal records he must return them on demand. Federal Records are not his – whether classified or not.
At the same time as president he could and did declassify many federal records. And he can as a private citizen make public any federal records in his posession that are not currently classified – either they never were classified or they were declassified – regardless of the fact he is now a private citizen.
I would separately note that ex presidents and vice presidents retain – by Executive Order the priviledge of posessing Classified documents. that covers both Biden and Pence as Vice Presidents, and Trump as former president.
But is does not relieve them of the duties to properly handle classified documents.
They can not store them in he garage, in the library, in a foriegn funded Think Tank.
They must be in a SCIF or their government provided Offices. And they must return those documents on demand of the current government. EXCLUDING classified (or not) presidential records from their own presidency.
There is an equivalent to “presidential records” Vice presidents – but it is far more limited. And though it is addressed in some caselaw in this area, it is not relevant to current issues. There is no indication that anything in Biden’s or Pence’s posession met the much narrower defintion of “vice presidential records”, and there are very few constitutional powers of a vice president so there is a great deal of lattitide for congress to make laws covering the vice president.
Even the Vice presidents power to declassify is rooted in Executive order – NOT he constitution.
Regardless my main point is that all of the above is actually DECIDED LAW.
It is just not Supreme court DECIDED LAW.
Decided law does NOT mean immutable.
DOJ is free to challenge anything above – IN COURT.
The are NOT Free to assume it away.
They are NOT Free to act as if the law were different – Until they have persuaded the courts to change the case law.
Their odds of doing so are low, but higher than if this were an appellate court decision, and much higher than if it were a supreme court decision.
The PRA is constitutional – with respect to everyone EXCEPT the President.
It is constitutional With respect to the President
If and only if – The president decides what records are personal and which are not.
While the PRA dictates how that decision is to be made, the decision is solely the presidents and is not reviewable by the courts.”
We agree on these things all but whether or not is decided. I think these questions exist but shouldn’t. You think they exist positively. It’s a distinction without a difference.
Decided? “Their odds of doing so are low, but higher than “
The raid, absolutely wrong. Use of the courts? The way to go.
There is not an issue – including those of absolute fact that you can not find someone who will disagree.
To that extent nothing is decided.
With respect to the issues related to presidential documents the state of the caselaw is not unclear.
That does not preclude people from believing that it is wrongly decided, or trying to change that decision.
One of the reasons that we are concerned about weaponizing government and the law is because there is a gigantic difference between saying
We will prosecute people criminally for violating what the law SHOULD be.
and
We will prosecute people criminally for violating the law as it is.
The first is itself both immoral and criminal.
There are many requirements to “the rule of law”.
But one critical one is that the law itself must be knowable and certain.
It is our individual obligation to know the law and conform to it.
But we can not do that if what we have to conform to is different depending on the day, the judge, the jury.
“With respect to the issues related to presidential documents the state of the caselaw is not unclear.”
The state of the law is not unclear until people start to think of ways to get around it. At the present time, there is much thinking. In the minds of much of the country this question is not settled or it is settled but might be the opposite to the caselaw of today.
If your definition of unclear is will someone try to get arround it – nothing is clear.
Nothing is clear but eventually we reach a statistical place of near certainty. Though the odds are very much in favor of what we believe, I don’t believe it near a statistical certainty.
Turley’s a never Trumper at heart.
Trump’s conduct was “knowing and more culpable” according to JT. He’s the only one of the three who had the RIGHT to have those classified documents. His reiteration of that right is being deemed obstruction. This is why it’s hard to take professor Turley seriously sometimes.
Legislation regarding classified material is unconstitutional.
Classification, declassification and archiving of material is solely a function of the executive branch.
The legislative branch has no power to pass legislation which usurps the power of the executive branch.
No branch of government or private citizen may adhere to enemies of the U.S.
The judicial branch must support the Constitution.and exert its power of Judicial Review.
The singular American failure continues to be the Supreme Court.
The Congress and Senate are derelict in their duty to impeach and convict high-criminal Justices who usurp power and deny the dominion of the Constitution.
I thought that Article 4 of the Bill Of Rights was removed from the Constitution and replaced by Rules for Radicals after the 2016 elections? Hmm, where did I go wrong? I must be living in the Twilight Zone.
The time has come (hope it is not too late), for each of us to declare, “for the Bill of Rights and the Constitution, or against it”. And if you haven’t read them, better get started. That ought to be the prevailing question asked of any and all candidates, and if any candidate, of any party, hums or haws or declines to answer, you have your answer they do not care about YOUR freedom,. It would automatically wipe out 3/4 of the nonsense we are subjected to by our government. The passage of any and all bills, should require 3 things: 1. Is it Constitutional and does protect all rights given to individuals EQUALLY? 2. Voting on a bill should require a signed affidavit that the bill has bill read in full by any Senator or Representative that votes on it. 3. It should be in the public domaine, in it’s entirety, for no less that 60 days. Last but not least, should come a law REQUIRING the federal prosecution of any appointed, elected, or government official, that does not ENFORCE the law. Those not enforcing our laws should then lose their positions.
The fact that the Washington Post broke the story suggests an agenda. The FBI is throwing the DOJ bigwigs under the bus. The question is, why?
The Biden administration is throwing Bratt and other DOJ subordinates under the bus, foisting the blame onto them for politically sensitive decisions that were surely at least approved by Garland and Biden.
Same thing yesterday. Garland, questioned in the Senate about the decision to raid that pro-life activist, shifted the responsibility to subordinates.
In Garland’s testimony about the raid on Houck he said that the FBI investigators decide about the process to use, not DOJ. Yet here his senior deputies are said to have overridden the strongly held views of the FBI’s lead investigator, who advocated seeking a consensual search.
Garland’s responses to Hawley and Cruz were further evidence of how inadequate an AG he is.
And just think: He came close to being on the Supreme Court.
To save Steve D’Antuono’s rep. He masterminded J6 and now it is all coming out.
I’m seeing this comment a lot when the press shockingly does their job and stands up to Biden’s lunacy and open corruption. The answer is quite simple. Biden has pretty much said he is running again. He really has no choice. The minute he is out of office 90% of his power vanishes and he is subject to investigation and prosecution on a host of things his presidency protects him from. Most on the left, including not only the politicians but the 98% of the press that votes left, don’t want him to run again and the sabotage of his candidacy will only increase. The “why” at first blush feels naturally confusing from Democrats but in reality it’s blatantly obvious.
For so long Christopher Wray has been the lefts media darling. Now Mr, Wray says that for some time now the FBI has believed that Covid was started by a lab leak and the left hasn’t wasted a second in throwing him under the bus. It makes them look like they are the speech control zeolites that they are. Now that they have been exposed their railing just gets louder. They are very afraid that they will be blamed as they well should be. One by one they fall from favor and the churning of their gut can be more and more easily heard. They have damaged the people of this national and the people know it.
sorry your wrong I worked with the fbi, there are no good fbi agents they are all criminals………
I agree. Almost all those in the entire DOJ, which includes the FBI, who are not involved in the crimes are doing nothing about it, thus they are aiding and abetting.
DOJ won’t back Trump’s absolute immunity claim against civil lawsuits seeking to hold him liable for the Jan. 6 attack. DOJ says the allegations of inciting violence wouldn’t fall within his presidential duties:
https://assets.bwbx.io/documents/users/iqjWHBFdfxIU/r8D6TGXbTmsE/v0
If “inciting violence” is a civil offense, when will someone sue the media companies for constantly showing the picture of Derek Chauven holding his foot against the neck of George Floyd? That inflammtory image led to weeks of rioting.
If you have standing, do it, and see how weak your argument is.
Not quite as weak as yours but the premise is identical.
People with standing filed suit. My lack of standing is irrelevant to their case. And no, the premise isn’t identical.
Maybe some of the hundreds of people who lost businesses, and the families of the people killed by those riots, can bind together to file suit. Let a court say they have no standing.
Offer to pay their legal costs if they lose, which they will.
Anonymous – You don’t seem to have much sympathy for the thousands of people harmed by the BLM riots, black as well as white and Asian. If our system does not provide a means of their redress against the media mob that ruined their lives, then all fair-minded people should work to help them find their relief. And, no, I don’t think that a rejection of standing would result in the the imposition of costs. Civil tort law evolves when citizens try to force it to face novel situations. The power of the media to destroy is such a novel situation.
I have plenty of sympathy for those harmed by the riots. I simply don’t have sympathy for bad legal takes.
The DOJ might have the power (and even standing if there were a need) but the DOJ is wrong. Edward might not have standing but he is correct.
Your world lacks morality. You can’t tell the difference between right and wrong.
Allan / S. Meyer’s daily insults, example #1016.
You got the count right this time. Yes you are not moral and you lie. That is not an insult. That is the truth.
Allan / S. Meyer, you always describe yourself.
Since you are a liar, I have to accept the opposite of what you are saying. Thank you.
Except he didn’t incite violence
He can argue that in the case, which is proceeding.
You look for spelling and grammar mistakes, but you have no concern about morality or the appropriate actions consistent with the Constitution created for free and honorable people.
“DOJ won’t back Trump’s absolute immunity claim”
The DOJ is corrupt and has overstepped its constitutional responsibilities..
Right because Tweeting for people to “stay” peaceful and then in a second tweet to “remain” peaceful. Then in a video later calling on his supporters to help the beleaguered members of law enforcement at the Capitol. Are so inciting!
There is the fact that only Presidents can declassify, which in a sane world would have stopped all of it compared to Vice Presidents which have no such authority.
Vice Presidents can declassify anything they classified or that was classified by someone they supervise.
If my comments were as stupid as yours I would be anonymous too…
As Sam said, “When you can’t pound the facts, pound the witness — a sure sign of a losing case and of a vacuous mind.”
For the most part Sharon is right. You are trying to show that you have testosterone, though it does you very little good.
Not under normal circumstances they can’t. Biden had the power only as the result of a 2009 executive order signed by President Barack Obama.
All you have to understand is this video by Obama. Obama has orchestrated insurrection chaos in the USA and he admits it. It is all planned, and they will bring out country wide riots anytime they need them and then some. The intel services are the ringleaders in our govt, that is clear.
https://twitter.com/SweetPeaBell326/status/1630585841411149825
Well his crowd wants to bring down the U.S. government from the inside, which is to say to bankrupt the country, destroy the justice system, destroy the country’s borders hoping for the world’s hordes to invade like Rome’s fall, demoralize the population and destroy their faith in our form of government, spark a race war in order to foment a civil war to break up the country. This way they can convince at least specific states to rescind the U.S. constitution and form a marxist state. They are certainly succeeding so far.