Trump’s “Declassified” Documents

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1. Humble Talent says

   December 28, 2022 at 12:24 pm

   My understanding of the issue, and I’m not a lawyer, so this might be a very flawed understanding of the issue, but my understanding is that because the President of The United States has plenary power over classification that stems from his position as the Commander in Chief, the normal rules of declassification do not apply to them.

   As a hypothetical, if a president has classified material on their desk, and is in a meeting with a foreign head of state, and the president decides that sharing that material might have a beneficial outcome to the meeting, that president can hand over the material, and the act of doing so implicitly declassifies the material so that the president did not break the law in sharing it. The alternative is that the president committed a crime created as a function of their office that they have plenary authority over…. Which is a little absurd. I know I said hypothetical, but I believe this happened once with W.

   Now the argument from from Trump’s lawyers is that Trump declassified the material by taking the material to Mar-a-Lago. Lawyers like Ken White and Josh Barro have derisively called that “galaxy brained”, but didn’t explain why it was absurd or what the rules were, meanwhile… to a lay person, it at least seems plausible, because I don’t believe there’s a SCIF at MaL so the alternative to those documents being declassified is that Trump, by exercise of transporting those documents in bankers boxes, committed a crime during his presidency.

   Trump’s main problem though, isn’t the classification level of the material, that’s the wet dream of terminal coffin-nailers really hoping to finally get Trump. Trump’s problem is that *regardless of the level of classification those documents had, they did not belong to him*. Just like the president doesn’t get to keep all the White House furniture when they leave, the president doesn’t get to take as much letterhead and stationary with them as they want. There isn’t a hard and fast rule on when they have to return government property, and I doubt that anyone thinks it’s reasonable to say that on the stroke of midnight, January 6th, non-compliance is a crime, but they certainly don’t get to keep that stationary for eight months, particularly after multiple requests for it. Regardless of the classification of those documents, Trump absolutely fell afoul of the Presidential Records Act, and even though it seems like absolutely brutal levels of overkill to raid the premises over that, rubber had to hit the road eventually. Unique inaugural events surround Trump because he is such a man child, and gets dragged kicking and screaming through processes instead of surrendering to the inevitable.

   Which is kind of the theme. I don’t believe we know exactly whether those documents are declassified because while it seems logical that Trump probably wouldn’t become a criminal when he had the absolute authority to make his activity legal, he certainly didn’t follow normal procedures and I think that’s left us in uncharted waters.

   I don’t think you’ll get returns on the FOIA request, because while the classification is being sorted, they’re going to err on the side of caution. I’ll go so far as to say that we probably won’t ever get a determinative answer on whether the material is declassified or not because it’s murky, the plenary power is inherent in the presidency so the legislature can’t regulate it, and because the justice department will have easier avenues to navigate, if they even decide to press charges.

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