Yesterday the 11th Circuit ruled against Trump concerning the documents marked “classified”
Trump lost in the 11th Circuit yesterday. Here’s Jonathan Turley describing the ruling:
On Wednesday, the United States Court of Appeals for the Eleventh Circuit narrowed the order of U.S. District Judge Aileen M. Cannon by allowing the Justice Department to regain access to the roughly 100 classified documents seized among roughly 11,000 documents at Mar-a-Lago. It was not unexpected. As previously discussed, this was the “smart move” by the Justice Department to first seek access to this small group of documents with classified markings, the strongest of its arguments against the order. In the meantime, former President Donald Trump gave a full hour-long interview with Fox’s Sean Hannity, a risky decision in a case with potential criminal charges. In the interview, Trump suggested that he could declassify any or all documents “with a thought.” It is a position likely to further alienate both the Special Master and the appellate court, which have already expressed frustration with the lack of support offered for declassification claims…
Judge Cannon’s order on the classified documents was the most controversial element of her appointment. The former president’s failure to support his declassification claims only magnified the problem with that part of the order. However, the court also noted that “even if we assumed that Plaintiff did declassify some or all of the documents, that would not explain why he has a personal interest in them.”
There you have an example of one of Trump’s weaknesses – did he or did he not formally declassify the documents? Can he prove it? Does he need to do so? And what did he really say to Hannity about “with a thought”? The longer statement can be found here.
Back to Turley:
While the government must show a knowing violation (as opposed to classified status), the Trump team has repeatedly declined to produce evidence of such a written or oral order, including any declaration from Trump or staff on such a decision.
Trump aide Kash Patel has said that Trump made a sweeping declassification of documents over social media. That certainly is a novel argument – I don’t think such a thing has been legally adjudicated before. In fact, I don’t think the procedure for a president’s declassifying documents has ever been made completely clear:
Yes, the president can declassify documents while in office, but there isn’t a set protocol they have to follow…
Though there aren’t specific protocols that the president must follow to declassify a document, federal courts have ruled that they will “refuse to recognize what they consider to be an inference of declassification,” McClanahan said.
So it seems that courts have previously ruled – and the 11th Circuit followed this precedent yesterday – that they want to see evidence of a protocol that has never been codified or set down. If Trump followed any protocol, it certainly wasn’t the usual one.
Turley adds:
…the panel emphasized that “We stress the limited nature of our review: this matter comes to us on a motion for a partial stay pending appeal. We cannot (and do not) decide the merits of this case.” The Justice Department could elect to take the win and let Dearie proceed with his review (while litigating control or possession before the lower court). Conversely, it could take this strong language as an indication that the panel could be skeptical of the very appointment [of the Special Master] itself.
The DOJ has of course already seen all the documents. Whether it presses forward depends, in my opinion, on whether it thinks it needs to use the other documents to get Trump, or whether the ones marked “classified” will be enough. In addition, Trump might appeal yesterday’s decision to SCOTUS. One avenue – that of having the full 11th Circuit decide en banc – doesn’t seem to be in the cards, according to Turley. He doesn’t explain why, but perhaps it is because two of the judges on the 3-judge panel who ruled yesterday were appointed by Trump but were not onboard with the Trump argument in the case, so it might seem a near-certainty that the full panel would be agreeing and ruling against Trump.
I happen to agree with this commenter at Legal Insurrection:
This really might be okay if it weren’t for two things.
The plaintiff were an ordinary citizen instead of the former president.
The justice department had demonstrated fairness and equal application of the law.
Neither of those are true, therefore this is an atrocious ruling enabling continued abuse of a political enemy. Particularly in light of the Letitia James monstrosity that got laid out today.
Lastly, this leaves in place a regime where no court can intercede or question the validity of quote unquote National security, therefore the intelligence apparatus has absolute power which results in absolute corruption.
That’s where we are and we’ve got a trump judge on board with this. It’s really looks like it was written by the department of Injustice.
There’s also this:
Imagine claiming a President couldn't possibly have a personal interest in his own documents merely because he once affixed the label "classified" on them during his Presidency. That would make the label more important than the man with the only power to make the label. Insanity!
— Robert Barnes (@barnes_law) September 22, 2022
Thus, we’re left with what all similar disputes between former Presidents and the bureaucracy: procedures (however construed or invented), and plenary relying on separation of powers doctrine.
This game has been played out again and again without compete resolution.
If this results in prosecution, my one firm expectation is that if appealed, then SCOTUS, after narrowing the issues, will punt and say that political processes like re-election or impeachment by Congress are the proper remedies — not Judicial encroachment nor bureaucratic encroachment upon the (ex-)executive.
And I’m sure Kash Patel and other advisors are relying on this likelihood with certainty.
A confused President Biden finally just shuffled aimlessly, hands outstretched, into 25th Amendment territory.*
But it takes the VP and a majority of the Cabinet to declare him incompetent to carry out the duties of his office and to notify Congress of their judgment.
Does anyone think that this will actually happen?
* See https://pjmedia.com/vodkapundit/2022/09/22/the-saddest-most-senescent-joe-biden-video-yet-n1631446
Snow on Pine,
No. They shudder at the very thought of having Harris as President.
Obama issued an executive order saying he could classify or declassify any document he wanted. Since all executive power is held by the president, he doesn’t need permission from the bureaucracy .
Of course they ‘chose poorly’ she as much probably triggered the timing of the invasion with her incompetence.
Sources i trust say these are crossfire hurricane documents maybe a smattering qbout the iranian nuclear program
Question 1: Would a serving president be in violation of the law of he/she took a classified memo outside a SCIF to read or show to another person? If yes, what would be the basis of the violation?
Question 2: If such a classified memo was left in a dresser of the president’s beach house. Would that be a violation of the law? If yes, what would be the indictment?
Question 3: If such a classified memo were discovered when the POTUS were no longer president, would that make the non-violation of the law now a violation?
“Obama issued an executive order saying he could classify or declassify any document he wanted. Since all executive power is held by the president, he doesn’t need permission from the bureaucracy .”
Obama is from the correct party, he can do whatever he wants.
Trump is from the wrong party, whatever he does is wrong. Even if, and maybe especially if, it’s something Obama does as well.
That’s all folks.
@JTW:
We’re already there. The Supreme Court was pretty clear that President Clinton couldn’t mishandle classified documents, and if he had done something that looked like that it merely meant that while he hadn’t bothered to tell anyone about the declassification, it had implicitly been done.
One thing that I don’t quite understand (though this might be because I don’t have all the information) is that if the FBI takes scads of documents—hoovers them up from your home so to speak—and refuses to describe specifically, or itemize, which documents they took (while also REFUSING to allow a Trump official, OR LAWYER, to accompany them on their “search” (is THAT on the up and up??), then how is Trump supposed to tell them which SPECIFIC documents are the ones that have been unclassified.
Is this just another “heads I win, tails you lose” farce by the DOJ/FBI?
Once again, it doesn’t seem to make sense but I may not be fully understanding what occurred or what’s at stake here….
(Oh, and might one wonder whether Melania’s underwear was declassified? Curious minds, etc…)
The federal judiciary has been a bulwark for the deep state. It’s what they do.
Brandeis and Frankfurter violated judicial ethics constantly to help FDR.
Sirica violated judicial ethics throughout Watergate in his quest to get the hated Nixon. He was supported all the way up to the Supreme Court.
In a bar review course in July 1981 the Con Law lecturer wrapped up his talk with a throwaway line to wrap up several decisions of the Court over recent years: “Then there are those cases for which the only legal principle one can draw is that Jehovah’s Witnesses win and Nixon loses.”
Nixon was screwed by the deep state every which way they could get him. The judiciary piled on. Trump has been relentlessly screwed as well. This has nothing to do with the law or legal principle. This is bare knuckle, face punching, beatdown bludgeoning. This is “curbing”.
Intellection pretenses about the rule of law ain’t got nothing to do with nothing.
Re: Declassification by thinking:
https://en.wikipedia.org/wiki/Ted_Serios
oops. should have been “brass knuckle”
Oh really
https://pjmedia.com/news-and-politics/ryanledendecker/2022/09/22/court-filing-reveals-mike-lindell-is-target-of-doj-investigation-n1631356
It is possible that Trump has been sued more times than anybody in history. If not, enough times that he knows the system. He employs a stable of very competent attorneys. And no, I am not talking about Giuliani or Dershowitz. And then he has the video of the raid on Mar a Lago. This is all very entertaining but if I were a betting man my money would be on Trump.
Trump is the Shane character who helps the proles and then has to ride out of town. I doubt he will be elected again. If necessary, he will be assassinated. I just hope he does not rely on the Secret Service for protection.
The Deep State is in charge. You can write down on parchment that “the executive Power shall be vested in a President of the United States of America,” and indeed that was done.
But the President is one human being who must necessarily act through others. If those others decide not to listen or do anything, nothing will happen no matter what the parchment says. If they decide today is Opposite Day and they do the opposite of what the President wants, that’s what will happen regardless of what the parchment says. What is he going to do, fire them? Because the President cannot single-handedly fire people–somebody has to make updates to payroll files, somebody has to turn key card access off, somebody has to stand there while the desk is boxed up and somebody has to walk the guy out the door.
Those things are no longer happening at the President’s direction. The Deep State is in charge. Documents are declassified if the Deep State acknowledges they were. People are fired if the Deep State says they are. Who they take direction from may not be the President.
We didn’t vote our way into this, and won’t vote our way out… A lot of other stuff has to be made to change outside of elections.
“On Wednesday, the United States Court of Appeals for the Eleventh Circuit narrowed the order of U.S. District Judge Aileen M. Cannon by allowing the Justice Department to regain access to the roughly 100 classified documents seized among roughly 11,000 documents at Mar-a-Lago.”
So what is the legal basis for the FBI to take the 10,900 non-classified documents. By the DOJ/NARA’s own statements they only wanted the classified documents.
Everything else should not have been taken in the first place, thus making the classified issue blatantly pretextual, which SCOTUS has ruled unconstitutional. (No, I don’t have the cases at the tip of my fingers and no access to Westlaw/Lexis.)
https://ussanews.com/2022/09/22/report-obama-has-classified-records-stored-in-furniture-warehouse/
Can….”There’s a precedent….” be used as a defense, with the part “,,,and you don’t care about it because he’s a democrat….” left unsaid but obvious?
There have been court cases on this and I believe that they have stated in one form or another that the President can classify or declassify at will and doesn’t need a formal declaration.
Hat tip Mark Wuack …
“The president may delegate that plenary power to agents in the bureaucracy or judiciary, but it is always and ultimately the president’s power. The judges and bureaucrats have no authority when they’re lined up against a president.
Why am I so certain about this? Because the United States Supreme Court said so. In Navy v. Egan, 484 U.S. 518 (1988), the Court was asked to determine whether a civil service board can review the case of a “laborer” denied a national security clearance. The Court concluded that the President is the one vested with the power to determine national security matters:
‘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 and to determine whether an individual is sufficiently trustworthy to occupy a position in the Executive Branch that will give that person access to such information flows primarily from this constitutional investment of power in the President, and exists quite apart from any explicit congressional grant. See Cafeteria Workers v. McElroy, 367 U. S. 886, 367 U. S. 890 (1961).’”
https://www.americanthinker.com/blog/2022/09/the_eleventh_circuits_unconstitutional_ruling_against_trump.html
Problem is the government knows it can’t legally do all this, but it continues to do so and makes it appear legal.
“On the facts in Navy v. Egan, that principle prevented Congress from limiting the president’s ultimate authority or delegating the authority. However, the same principle means that both the judiciary and the president’s subordinates in the bureaucracy lack any authority unless the president has delegated it. And in this case, by removing the documents from the White House, President Trump asserted his authority over the documents’ classification status, overriding any hack bureaucrat or judge.”
NewNeo: There you have an example of one of Trump’s weaknesses – did he or did he not formally declassify the documents?
It doesn’t actually matter with regards to the statutes involved, but is of interest with regards to the investigation concerning risks to the national security interests of the United States.
NewNeo: Can he prove it? Does he need to do so?
No. As the court pointed out, declassification still means they are government records, not Trump’s personal property.
NewNeo: they want to see evidence of a protocol that has never been codified or set down.
That is incorrect. See Executive Order #13526. There’s always a procedure. It’s the government.
It’s important to keep in mind that classification is an adminstrative procedure. Classification tells government employees what documents are relating to the national defense. Unintentional mishandling of classified information can result in administrative punishment.
The Espionage Act does not hinge on classification. To prove a violation of the Espionage Act requires showing the information is, in fact, relating to the national defense; and that the person so charged knows that the information is relating to the national defense. The classification markings can be used as evidence of willfulness, but classification markings are neither sufficient nor required for conviction. See 18 U.S.C. §§ 793.
Trump was subpoenaed for “any and all” documents marked classified. Trump’s lawyer certified that they had surrendered all such documents. That certification was false. Documents marked classified were found in a known place with clear markings including Trump’s desk with his passport, and constitutes strong evidence of obstruction. See 18 U.S.C. §§ 1519.
Finally, documents produced by government employees remain government property, including documents marked classified, even if Trump had declassified the documents *in his mind*. All government documents should have been surrendered to the National Archives when Trump left office. See 18 U.S.C. §§ 2071.
That is incorrect. See Executive Order #13526. There’s always a procedure. It’s the government.
An EO can’t restrict the power of POTUS. It’s just a direction to those under him in the executive branch.
The Espionage Act does not hinge on classification. To prove a violation of the Espionage Act requires showing the information is, in fact, relating to the national defense; and that the person so charged knows that the information is relating to the national defense. The classification markings can be used as evidence of willfulness, but classification markings are neither sufficient nor required for conviction. See 18 U.S.C. §§ 793.
Congress can’t limit POTUS constitutionally derived authority. So that means an “Act” doesn’t apply to him (and that means 18 U.S.C. §§ 2071 also). Note, classification isn’t specifically mentioned in the Constitution. It’s simply derived from POTUS power as head of the executive branch, and this applies to things covered in the Espionage Act just as it applies to classification.
Zachriel seems to have soaked up the media lawyer arguments, but doesn’t grasp the fundamentals of the Constitution.
Zachriel:
No, that act does not apply to declassification by a president or actually any action by a president. Congress cannot do that, nor does the act in question even explicitly try to do that. Only a Constitutional amendment could do it or perhaps a SCOTUS interpretation of the president’s powers under the Constitution.
rbj1:
The non-classified documents and other items are still to be reviewed by the Special Master, as far as I can tell.
The marked-classified (since as POTUS Trump had unlimited ability to declass, so it would be hard if not impossible to prove he hadn’t) documents likely include information on the Russia collusion hoax they tried to use to take down Trump (i.e., a coup attempt). It’s obvious why Trump would have an interest in those documents.
Don: An EO can’t restrict the power of POTUS.
The courts have held that classification is an administrative function. There’s nothing constraining the president from changing the procedure. However, if the president declassifies something, but doesn’t tell anyone, then classification becomes meaningless, because no one would know what is or is not classified. No one could ever be held to account, and everything would be subject to public disclosure through the Freedom of Information Act.
Don: Congress can’t limit POTUS constitutionally derived authority.
Trump isn’t president.
Whether classified or not, if the information is relating to the national defense and the disclosure of which would damage national security, then it is protected by law. Citizen Trump is bound by the law like any other citizen.
neo: No, that act does not apply to declassification by a president or actually any action by a president.
If you mean the Espionage Act, it has nothing to do with classification, which is an administrative function.
Also, Trump apparently defied a subpoena.
—
We’ll let you have the last word, but please reread our original comment which details what is required under the law.
the thing is we remember the 28 pages, how revealing stefan halpers name was going to compromise national security, now danchenko’s crafted the dossier, we know how an unencrypted server, allowed first a romanian hacker, guccifer and then others to access a whole catalogue of classified info,
Here’s the crux of the issue. If Trump, leaving office taking “cLaSsiFiEd” documents from office would be a “crime” of any kind, the fact is, there is no such crime for POTUS, thus making removing those documents a de facto declassification. The end. As President, the man could do ANYTHING HE WANTS with those documents, including, making them declassified for his later possession. With no process involved. By the mere act of him doing it, they are declassified. The deep state and their trolly simps can claim otherwise, but they’re flat wrong, by definition.
The courts have held that classification is an administrative function. There’s nothing constraining the president from changing the procedure. However, if the president declassifies something, but doesn’t tell anyone, then classification becomes meaningless, because no one would know what is or is not classified. No one could ever be held to account, and everything would be subject to public disclosure through the Freedom of Information Act.
How would we know he didn’t tell anyone? Yes, there is always the possibility no one would be held to account, you can’t make a system that eliminates that possibility. In our system the power within the executive branch rests with the president, and hence presidents have the power to do much damage, as Biden is now doing and Obama previously did.
Trump isn’t president.
Whether classified or not, if the information is relating to the national defense and the disclosure of which would damage national security, then it is protected by law. Citizen Trump is bound by the law like any other citizen.
Trump was president when he obtained these documents and presumably declassified them (prove he didn’t). That’s sufficient to make them declassified. That’s all he needs. The Espionage Act doesn’t mention classification because the classification system came later. The classification system is simply a more practical implementation of the intention of the Espionage Act, which appears unconstitutional in its vagueness. But the constitutional logic applies to both, and the Espionage Act can’t constrain the power of POTUS.
If you mean the Espionage Act, it has nothing to do with classification, which is an administrative function.
It doesn’t mention classification because it predates it. It attempts the same thing, but in a vague manner. Classification isn’t simply administrative. Serious penalties apply to violating classification laws, although in the case of Clinton they were not applied.
Also, Trump apparently defied a subpoena.
Maybe or maybe not, but it’s meaningless. No penalty attaches to that.