Florida Trump Prosecution: Jack Smith Throws Fit Over Possible Jury Instructions That May Sink His Case
“The tone Smith is taking with Cannon is no longer persuasion but outright threats. Unheard of dynamic btw DOJ and the bench.”
I wish I and we had more time and people to follow the nuances of the various Trump prosecutions. We mostly write when something substantial happens.
Something substantial happened yesterday in the Florida prosecution involving records Trump removed from the White House and the feds claim violated the Espionage Act for Trump to possess. Most of the documents in question were recovered in the Mar-a-Lago Raid two years ago. There also were obstruction charges added later for Trump allegedly concealing documents and instructing staff to delete surveillance video (the video never was deleted).
On March 18, Judge Aileen Cannon, who the lefty media rails against daily, issued an Order with regard to potential jury instructions, particularly instructions as to Trump’s defense that he was entitled to remove any record he designated as personal:
With respect to the proposed language pertinent to the issue of “unauthorized possession” specifically, the parties must engage with the following competing scenarios and offer alternative draft text that assumes each scenario to be a correct formulation of the law to be issued to the jury, while reserving counterarguments.
(a) In a prosecution of a former president for allegedly retaining documents in violation of 18 U.S.C. § 793(e), a jury is permitted to examine a record retained by a former president in his/her personal possession at the end of his/her presidency and make a factual finding as to whether the government has proven beyond a reasonable doubt that it is personal or presidential using the definitions set forth in the Presidential Records Act (PRA).3
(b) A president has sole authority under the PRA to categorize records as personal or presidential during his/her presidency. Neither a court nor a jury is permitted to make or review such a categorization decision. Although there is no formal means in the PRA by which a president is to make that categorization, an outgoing president’s decision to exclude what he/she considers to be personal records from presidential records transmitted to the National Archives and Records Administration constitutes a president’s categorization of those records as personal under the PRA.
Trump filed his Response yesterday:
President Donald J. Trump respectfully submits this response to the Court’s March 18, 2024 Order regarding proposed jury instructions relating to Counts 1 through 32 of the Superseding Indictment. ECF No. 407. Attached as Exhibit A are proposed jury instructions addressing scenario (a) from the Court’s Order, with annotations and additional sub-exhibits providing supporting legal authorities.1
Attached as Exhibit B is a proposed verdict form relating to scenario (a), which uses Count 1 as an example for each of Counts 1 through 32. Scenario (b) from the Court’s Order is addressed below in connection with President Trump’s renewal of his pretrial motion to dismiss Counts 1 through 32 on vagueness grounds, and because the Court’s correct statement of the law in scenario (b) means that Counts 1 through 32 fail to state an offense under Rule 12(b)(3)(iv).
This important exercise further illustrates that crafting instructions applying the Espionage Act in this case would require recourse to “judicial gloss” and other authorities not included in or authorized by the statute, such as Executive Order 13526 and the Presidential Records Act (“PRA”). Therefore, as applied to President Trump, § 793(e) is unconstitutionally vague and “no law at all.” United States v. Davis, 139 S. Ct. 2319, 2323 (2019). We therefore renew President Trump’s void-for-vagueness challenge, ECF No. 325, which the Court denied without prejudice on March 14, 2024, “to be raised as appropriate in connection with jury-instruction briefing and/or other appropriate motions,” ECF No. 402.
Special Counsel Jack Smith also submitted his Response yesterday, and its getting a lot of media attention. His fury could barely contain itself on the pages, he practically called the Judge names and threatened to go to the 11th Circuit because either of the alternative formulations could sink his case (emphasis added):
The Court has issued an order (ECF No. 407) directing the parties to file preliminary proposed jury instructions and verdict forms for Counts 1-32 of the Superseding Indictment, with a specific requirement that the parties “engage with [two] competing scenarios and offer alternative draft text that assumes each scenario to be a correct formulation of the law to be issued to the jury.” Both scenarios rest on an unstated and fundamentally flawed legal premise—namely, that the Presidential Records Act (“PRA”), and in particular its distinction between “personal” and “Presidential” records, see 44 U.S.C. § 2201 (2), (3), determines whether a former President is “[]authorized,” under the Espionage Act, 18 U.S.C. § 793(e), to possess highly classified documents and store them in an unsecure facility, despite contrary rules in Executive Order (“EO”) 13526, which governs the possession and storage of classified information.
That legal premise is wrong, and a jury instruction for Section 793 that reflects that premise would distort the trial. The PRA’s distinction between personal and presidential records has no bearing on whether a former President’s possession of documents containing national defense information is authorized under the Espionage Act, and the PRA should play no role in the jury instructions on the elements of Section 793. See ECF No. 373 at 5-12. Indeed, based on the current record, the PRA should not play any role at trial at all.
Moreover, it is vitally important that the Court promptly decide whether the unstated legal premise underlying the recent order does, in the Court’s view, represent “a correct formulation of the law.” ECF No. 407 at 2. If the Court wrongly concludes that it does, and that it intends to include the PRA in the jury instructions regarding what is authorized under Section 793, it must inform the parties of that decision well in advance of trial. The Government must have the opportunity to consider appellate review well before jeopardy attaches…. If, for example, the Court concludes—as posited in Scenario (a) in the Court’s order—that under the Espionage Act a former President is authorized to possess any document that the jury determines qualifies as a personal record as defined by the PRA, that would wrongly present to the jury a factual determination that should have no legal consequence under the elements of Section 793. Likewise, if the Court concludes—as posited in Scenario (b)—that a President has carte blanche to remove any document from the White House at the end of his presidency; that any document so removed must be treated as a personal record under the PRA as an unreviewable matter of law; and that, also as a matter of law, a former President is forever authorized to possess such a document regardless of how highly classified it may be and how it is stored, that would constitute a “clearly erroneous jury instruction that entails a high probability of failure of a prosecution,” Wexler, 31 F.3d at 129, and the Government must be provided with an opportunity to seek prompt appellate review.
There was a lot of bluster from the usual suspects bashing the Judge and cheering Smith’s aggressiveness.
JUST IN: An extraordinary filing from Jack Smith tonight that is almost incredulous at how legally incorrect Judge Cannon's jury instruction scenarios are re: Trump's claim that he designted reams of classified info as "personal" on the way out of the WH.https://t.co/lmmI1dvWDb pic.twitter.com/grnmBsGwJC
— Kyle Cheney (@kyledcheney) April 3, 2024
In a new court filing, Jack Smith goes directly after Judge Cannon’s lawless proposed jury instructions. And he threatens to appeal (mandamus) her. He’s right – Cannon is trying to nefariously orchestrate an acquittal for Trump. #JusticeMatter video dropping later today. pic.twitter.com/TqNSYEI6eW
— Glenn Kirschner (@glennkirschner2) April 3, 2024
Trump's proposed jury instructions in a nutshell: Cannon – "Ladies & Gentleman of the jury, I instruct you that President Trump is not guilty of violating 793(e)." https://t.co/XJf5Z26WG2
— legalnerd (@alegalnerd) April 3, 2024
It’s not at all clear this is going to help the prosecution with this Judge.
Pro-Tip:
You want to know how to piss off a federal judge quickly?
File a document in response to a court order that says there is an "unstated" legal premise in the court's order — i.e., a straw man — and then crap all over that "unstated" premise in disparaging and…
— Shipwreckedcrew (@shipwreckedcrew) April 3, 2024
Reading Jack Smith's response on jury instructions and it's clear that the gloves are off btw DOJ and Judge Cannon.
One defense attorney just told me: "The tone Smith is taking with Cannon is no longer persuasion but outright threats. Unheard of dynamic btw DOJ and the bench."
— Julie Kelly 🇺🇸 (@julie_kelly2) April 3, 2024
If the feds want go to the 11th Circuit before trial, they may get their wish. But this Judge still will be the judge for the trial.
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Comments
As I understand it, the judge ruled in a manner that will prohibit what Jack Smith did with the Grand Jury, merely assert the subject documents were classified and hence we can’t show them to you. The judge properly ruled that was complete nonsense. The documents must be made available to counsel so a defense can be properly asserted. Smith’s take is the ultimate fascist trial tactic. “It is a crime because I say it is”.
Smith is a corrupt liar and there are serious allegations about his overseas dealings that need to be investigated by Trump.
It is about time Trump got investigators on his persecutors.
Exactly.
You can certainly rule that documents are classified, and can only be viewed by attorneys with appropriate clearances.
This would, of course, require a possibly years-long delay in the proceedings for the attorneys to apply for and receive security clearances.
The idea that he could simply declare them classified and simply refuse to produce them, is nonsense.
No, that’s not the issue, and that’s not what the judge has decided. I’ll expand on that in a later comment.
Oh we’re all on the edge of our seats.
Lol
Here comes Milhouse to try to ride to the defense of whatever illegitimate thing democrats want to do.
“If the feds want go to the 11th Circuit before trial, they may get their wish. But this Judge still will be the judge for the trial.”
Meanwhile, tick, tick, tick . . . Smith may want to go to the 11th, but he can’t do that until Cannon makes some sort of decision and she can’t be compelled to hurry up. Tick, tick, tick . . .
November 5th approaches.
Harry Litman, at my favorite crazy-eyes Trump Derangement Syndrome site, goes crazy-eyes over it and the crazy judge.
https://youtu.be/behDiIbJ14Q
The Bulwark channel on YouTube is good for TDS too.
Because it’s factually the case that Judge Cannon is a corrupt idiot l. There are these things called facts and they aren’t in your favour.
So I guess this aligns with the Clinton sock drawers decision as far as the presidential records Act goes? That is, a president’s personal records are what he says they are and he is the final arbiter.
Apparently those “rules” only apply to Democrat Presidents.
The Conservative 5th circuit already admonished Cannon over the claim that PRA is even relevant. It’s just factually the case that the PRA doesn’t apply, it’s from a legal point of view absurd
Correction 11th circuit
No, it didn’t. The 11th circuit decision doesn’t even mention the PRA, let alone rule that it’s irrelevant.
Actually it does. This is a quote from Jack Smiths response to judge Cannon which includes a quote from the 11th circuit
“The implausibility of Trump’s fiction was also readily apparent to the Eleventh Circuit, which also distinguished personal items like “medical documents, correspondence related to taxes,
and accounting information” from the highly classified documents at issue in this case:
For our part, we cannot discern why Plaintiff would have an individual interest in or need for any of the one-hundred documents with classification markings. Classified documents are marked to show they are classified, for instance, with their
classification level. Classified National Security Information, Exec. Order No. 13,526, § 1.6, 3 C.F.R. 298, 301 (2009 Comp.), reprinted in 50 U.S.C. § 3161 app. at 290-301. They are “owned by, produced by or for, or . . . under the control of the
United States Government.” Id. § 1.1. And they include information the “unauthorized disclosure [of which] could reasonably be expected to cause identifiable or describable damage to the national security.” Id. § 1.4. Case 9:23-cr-80101-AMC Document 428 Entered on FLSD Docket 04/02/2024 Page 11 of 24 12
Trump v. United States, No. 22-13005, 2022 WL 4366684, at *8 (11th Cir. Sep. 21, 2022). As the Eleventh Circuit concluded, “Plaintiff does not have a possessory interest in the documents at issue, so he does not suffer a cognizable harm if the United States reviews documents he neither owns nor has a personal interest in.” Id. at *12.
Once again, the gaslighting liar gaslights and lies. Why don’t you just go away? Don’t you get tired of being constantly humiliated for your stupid lies here?
Jack Smith is not the 11th circuit court last I was aware?
@paul
It’s a quote from the 11th circuit take it up with them
@4rdm2
Jack Smith is quoting the 11th circuit decision
Why quote Jack Smith ? Quote the Eleventh Circuit. I found the decision. You can too.
No, it doesn’t. You are quoting Smith, not the 11th circuit. The 11th circuit opinion does not even mention the PRA, let alone rule it irrelevant, as Smith claims it is.
As I clearly stated. The quote from smiths filing is of the 11th circuit specifically
:Plaintiff does not have a possessory interest in the documents at issue, so he does not suffer a cognizable harm if the United States reviews documents he neither owns nor has a personal interest in
This directly relates to the PRA that’s what they are talking about. That’s the point of the 11th circuit statement.
The decision does not mention the PRA. It is not about the PRA. It has not taken the PRA into account.
And it just kills the left…
I’m not a lawyer but it sounds like President Trump’s lawyers are better at lawyering than Jack Smith and he’s hoping to just buffalo the judge into going his way anyway.
Being better than Jack Smith doesn’t sound that hard considering his unanimous bitch slapping by the Supreme Court
Jack Smith being the subject of a special prosecutor will be grand.
Smith’s espionage theory is bogus, as is his position that the PRA has no place in the case. Trump is entitled to his defense and the PRA goes to the heart of the matter. Smith knows it’s a defense to claims of espionage.
It would seem to me that his position would be bogus simply because the Espionage Act if I remember correctly never applied to presidents.
But it certainly applies to ex-presidents. You can’t tell me that once someone has been president he is forever exempt from the laws against espionage!
One can quibble about the strength of Smith’s language, and whether he would have been wiser to have made his point in softer language, but his point makes sense:
The judge has said that she’s contemplating two views of the law, and hasn’t yet decided which of them she will adopt, so she wants briefs from each party on how they would like the jury to be instructed in each case.
Smith properly protests that in his opinion both of these views are wrong, and the correct view of the law is scenario C, which the judge seems not to have even considered. If she has rejected it, he says, she needs to make an official finding to that effect in enough time that he can appeal it before the trial starts and jeopardy attaches. Because both A and B are disastrous to his case. His case rests on C, so if the judge has quietly ruled it out (without saying so) he needs to ask an appeals court to correct her.
The two views that the judge is undecided between are:
A. Trump has the right to keep personal documents, but it’s up to the jury to decide whether the documents he kept are personal. For that purpose they have to see them.
B. Trump, while he was president, had the full right to decide for himself which document are personal, so any that he kept must be presumed to be personal, and the jury has nothing to decide.
The third scenario that Smith is asserting is:
C. It doesn’t matter whether a document is personal or presidential; if it’s classified Trump has no right to retain it, even if it’s personal. He can only keep personal documents that aren’t classified. Therefore the jury doesn’t need to see the documents themselves; all it needs to see is evidence that they’re classified.
“ C. It doesn’t matter whether a document is personal or presidential; if it’s classified Trump has no right to retain it, even if it’s personal. He can only keep personal documents that aren’t classified. Therefore the jury doesn’t need to see the documents themselves; all it needs to see is evidence that they’re classified.”
I don’t that is quite right. Smith would still have to overcome the problem of implied declassification of the documents through Trump’s order to ship the boxes of documents (he claims to be personal records) to his home at MAL in FL, when he had plenary declassification authority. Smith has been trying to sidestep this from day 1.
Rather, he seems to be trying to build a case that Trump had no need to know or authority to possess National Defense information. Note that he doesn’t mention that the documents were classified – just that they included National Defense information. One problem there is that as of the date of the MAL raid, when the FBI seized the documents, Trump apparently had a DOE Q clearance, that was revoke several months later, under orders from the WH
Not true. See in the post above: “. . . determines whether a former President is “[]authorized,” under the Espionage Act, 18 U.S.C. § 793(e), to possess highly classified documents and store them in an unsecure facility, despite contrary rules in Executive Order (“EO”) 13526, which governs the possession and storage of classified information.”
How does an EO of one President bind the next one?
It remains in effect until a future president revokes or replaces it. Trump never did that to this order, so it’s still in effect.
Which inevitably leads to a definition of what is and isn’t an “unsecure” facility. They were locked in a facility guarded by the Secret Service until scattered for a photo op by the Fed raiders (or those who followed). Is that secure? I see no reference to a SCIF.
It is not considered a secure facility sufficient for classified information. Armed guards are just part of how you secure classified information. There are specific SCIF construction guidelines. That room/closet would have to have undergone renovation and certification to qualify.
From the Bill Clinton sock draw tapes case, documents marked “classified” in possession of an FPOTUS are “presumptively declassified.” Nothing at MAL was classified, because a POTUS (Donald Trump) determined that it was OK for a private person (Donald Trump) to have the documents. This transfer of the documents from POTUS DJT to private citizen DJT perforce declassified the documents, because it can’t be presumed a POTUS violated the laws concerning classified documents when he has plenary authority to declassify them. (And there are no statutes governing how a POTUS must declassify documents, because such legislation would be an unconstitutional violation of the separation of powers.)
At the moment the documents were declassified (when they were transferred out of the White House to MAL, by the order of the POTUS) the documents ceased to be subject to the EO.
And while that would correspond to precedent, that should be a troublesome outcome for constitutional conservatives. It smells highly of “Rule of Man” instead of “Rule of Law.”
Perhaps the law (Espionage Act) should be better written to express procedures a President must take to affirm those documents are declassified so this sort of gray area lawfare can’t happen again.
The Clinton case does not even mention the issue of classified documents. The tapes in question were not classified so the issue didn’t come up.
The espionage act can not apply here, By your and Smiths interpretation EVERY president would be in violation of it the instant they are no longer the president.
No. Because the President can declassify the documents and make that clear, and the documents can now be taken home with him.
The real issue here (IMO)* is the assertion of “private” documents. I’m bothered by the use of that to mean what records keeping laws would say are actually things like decisional documents that are required to be archived.**
(* I don’t think the “classified docs” issue is a real one because it should be dismissed because the President is the ultimate declassification authority. ALL classification and declassification authority is delegated from his authority. So it shouldn’t be an issue, IMO.)
(** I think copies of any otherwise-must-be-kept records are ok to walk away with if they aren’t otherwise restricted in some fashion. But there are a bunch of restrictions on a bunch of stuff [PII alone would be a pain in the backside] and a smart President would have lawyers go through it all and document it thoroughly so no one could execute lawfare against them.)
“ C. It doesn’t matter whether a document is personal or presidential; if it’s classified Trump has no right to retain it, even if it’s personal. He can only keep personal documents that aren’t classified. Therefore the jury doesn’t need to see the documents themselves; all it needs to see is evidence that they’re classified.”
I think too, that if that is his theory, then he will have to overcome the Clinton Sox case.
No, it won’t, because the tapes in the Clinton case were not classified.
The Clinton case has been badly mischaracterized by Trump supporters. All it found was that the National Archivist has no authority to decide whether a document is personal or presidential. It did not find that the president therefore has plenary authority to decide that. Also, in that case the Archivist was on Clinton’s side and didn’t want the tapes, agreeing with Clinton that they were indeed personal; the plaintiff in that case wanted the court to order the Archivist to reclassify them as presidential and confiscate them, and the judge said she couldn’t do that. So there’s no real comparison to the current case.
But the main point is that if Smith’s scenario C is right (which is something that has not yet been considered by any court), then the Clinton case is completely irrelevant.
What it might have decided was why Sandy Burglar was allowed to hide documents in his pants and steal them. But as someone has already mentioned, this is mostly just sophistry since there are rules for the Dems and rules for everyone else, especially political opponents.
Burglar wasn’t allowed to do that. That’s why he had to steal them. He was given a very generous plea deal, but he did plead guilty to a crime.
But those were papers that definitely did not belong to Clinton, and even Clinton didn’t claim they did.
Minor quibble: The Clinton tapes never went through a formal classification process, but the court determined they contained information that should be considered classified. (which only makes sense in consideration since every ex-President has a head full of classified stuff from their term in office, and speaking candidly to a reporter on tape means some of that is going to leak out, particularly with the gabby Clinton.)
But still, ABJ ruled they were *his* and not Presidential Records. It’s not like we can mind-wipe every President after their term is up. (Although with the current resident, a light rinse should do.)
I’m not sure a mind-wipe will be necessary for this President*.
No, it didn’t. I just read through the decision, and the whole issue of classified information does not come up at all.
Also, ABJ didn’t rule that they were his, just that if Clinton said they were his the Archivist had no authority to review that decision, and even if he had that authority she could not order him to do so.
The big distinction between that case and this one, as far as the official/personal distinction is concerned, is that in that case the ex-president and the archivist were on the same side. The archivist didn’t want the tapes. In this case the archivist does want Trump’s records, and very much disputes his claim that they’re personal. And while the Clinton decision says the archivist can’t question Trump’s word, it doesn’t say a court can’t.
This is correct, and the way cannon has implemented it seems to be in order that two scenarios which not only are legally incorrect but done in such a way that avoids judicial scrutiny. It’s also the case that by leaving the point to the jury jeopardy attaches thereby creating a legally wrong get out of jail free card under both her scenarios. Its legally absurd
That Cannon’s two scenarios are legally incorrect is Smith’s opinion, not established fact. No court has said that he’s right.
He makes a good point, but it’s merely that since he has a third scenario, if the judge has decided to reject it she needs to let him know in enough time to appeal it. That’s all.
Smith has cited opinion that explicitly states the PRA cannot be justifiably used in this very case. So no it is not opinion.
“He makes a good point, but it’s merely that since he has a third scenario, if the judge has decided to reject it she needs to let him know in enough time to appeal it. That’s all.” Agreed, although it seems like Cannon is in a bit of a bind she is going to have to do a lot of backpedalling to avoid the 11th circuit.
No, he has not. The 11th circuit opinion does not even mention the PRA, and certainly doesn’t say it’s irrelevant. That is Smith’s position, which he’s entitled to argue. If Cannon has decided to reject it then he’s entitled to appeal that decision. But it’s not true just because he says it is.
@milhouse
I literally provided you with a direct quote about the PRA from the 11th circuit.
It’s factually the case that the legal case law points to the PRA being utterly erroneous. This simply isn’t a contestable point.
Provide a link to the full text of 11th’s opinion, noting the relevant passage. Or you got nothing.
What part of “cited opinion” is the same as “stating fact”?
Are yo retarded?
He makes no good point.
It’s the law
He makes a very good point as far as it goes, but that’s not nearly as far as Bart thinks it does.
The good point that Smith makes is that there are not two possible views of the law but three. His view is just as plausible as the two between which Cannon says she is undecided. Just as plausible, but no more. His view is not obviously wrong, but it’s also not obviously right.
He is right, however, that if Cannon has already ruled out the third view then she should officially say so ASAP, so he can appeal it. She can’t spring it on him at trial.
This all abstracts from the fact that Jack Smith wants to fight Judge Cannon in the 11th circuit to decide what actions are actually criminal. That ipso facto indicates what is a crime and not a crime with respect to classified documents and the President is highly uncertain.. if this must be termed after the fact of the action. Trump’s attorneys motion of vagueness must stand.
What do cannons have to do with this? Are you suggesting Trump absconded with a GAU-8?
Who wouldn’t want to have their own tank?
Anyone who can hear the A-10 circling above their neighborhood. 😉
I’m with Millhouse (and Smith) on this one. Both alternatives presented by Cannon implicitly accept the premise that the term “unauthorized” in the espionage statute hinges on the PRA, a conclusion that’s at least questionable. He should have the benefit of appeal before jeopardy attaches.
C is only an interpretation of the law and a loose one at that.
It may not be a binary choice, Cannon may be asking for arguments for A and B, but already knows the arguments, pro and con, for C. Without Cannon stipulating those are the only two scenarios in play, we can’t make that assumption – even though Smith obviously has.
Smith is just upset that he’s being treated like a Republican
“ C. It doesn’t matter whether a document is personal or presidential; if it’s classified Trump has no right to retain it, even if it’s personal. He can only keep personal documents that aren’t classified. Therefore the jury doesn’t need to see the documents themselves; all it needs to see is evidence that they’re classified.”
I don’t that is quite right. Smith would still have to overcome the problem of implied declassification of the documents through Trump’s order to ship the boxes of documents (he claims to be personal records) to his home at MAL in FL, when he had plenary declassification authority. Smith has been trying to sidestep this from day 1.
Rather, he seems to be trying to build a case that Trump had no need to know or authority to possess National Defense information. Note that he doesn’t mention that the documents were classified – just that they included National Defense information. One problem there is that as of the date of the MAL raid, when the FBI seized the documents, Trump apparently had a DOE Q clearance, that was revoke several months later, under orders from the WH.
The espionage act operates on the notion that documents are nation defence documents not that they are classified it’s very carefully framed. So the absurd notion that Trump could declassify with his kind isn’t even relevant and even if it were there is evidence that Trump knew this couldn’t be the case. A clearance doesn’t allow you to take documents, there is a process to follow and if that were true why the sequence of obstruction. The facts directly contradict your claims.
For everyone except the POTUS that’s true. The POTUS is the unitary executive. The US Constitution vests ALL executive branch powers in the President. If he chooses to ignore normal executive branch procedures he can. A sitting President can waive any or all standard procedures if he wishes, he could even do so verbally.
That said it would be extremely helpful to his defense if Trump could produce a memorandum that memorialized this action. Preferably one with counter signatures of witnesses present. I know that if I were on the jury and there wasn’t such a memorandum and it came down to Trump’s Defense counsel basically saying ‘hey, trust us’ it would be a much tougher sell than if a memorandum were produced.
This is somewhat spurious with respect to the unitary executive, there is a lot of debate upon which how strong the unitary executive is. Simply asserting it doesn’t make it so.
As pointed out prior Trump has already admitted in private recordings that he considered some of the docs classified so its not just a case of proving he declassified them its a case of proving he did despite admitting having not classified them.
The only one of your comments I downvoted.
CommoChief is correct.
At least I agree with his first paragraph. In the second he is effectively suggesting that it would help if Trump could prove his innocence. This is an inversion of our process. Smith must prove that Trump didn’t have the authority to declassify the documents and he must prove that Trump didn’t know that (intent). Because if he can’t do that, the docs are all “presumptively declassified.”
Smith must prove that Trump didn’t have the authority to declassify the documents
I disagree. Smith must prove that Trump did not declassify the documents. And if there’s not a method of proving that in law then he’s gonna have to do some table hammering. (As opposed to hammering the law or the facts.)
This is an absurd position to take on what basis would smith have to prove that. That’s not how any of this works. Your taking a principle about guilt vs innocence and trying to transfer it to wider claims about demonstrating facts. That’s just silly
As someone who has to renew my training on this every year for the last 35 years, you’re WRONG. The President and his delegated authorities determine that information is classified. One of the bases for determining that is “National Defense Information.” There are other bases, as well.
Also, you are correct that having a clearance doesn’t allow you to take home classified documents. If those documents are de-classified (and not then restricted in some fashion while unclassified – PII, CUI) I certainly can take them home (well, a copy – there’s that whole record-keeping law I have to contend with as a peon). I can make copies and distribute them on the street corner if I want to. And, since the President is the primary authority for all classification and declassification….
The fact you slipped up and spelled it “defence” might show why you’re ignorant of this fact.
I believe Bart’s claim is that the Espionage Act is different, that it’s carefully worded not to depend on the classification system, and that for the purpose of this act and this act only, a document’s status depends entirely on its actual contents and not on how the president has classified it. Thus, he says, if a document in fact contains national defense information then declassifying it would change nothing, and nobody, not even the president, could then take it home.
I don’t think he’s right, but I think that is what he’s claiming.
This is correct, and as a matter of fact the law.
18 U.S. Code § 793
“(e)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; or”
GWB, you wrote: “The fact you slipped up and spelled it “defence” might show why you’re ignorant of this fact.”
Yep another foreigner getting everything wrong. I keep waiting for BartE to claim he’s a long-haul trucker cum mark311 cum master electrician, cum medical doctor (whose specialty changes every other week), cum climatologist, cum owner of all the knowledge on all the things.
We’ve seen this troll a bazillion times, and it never gets more interesting.
I don’t know why the article thinks it’s just the left that think cannon is useless, it’s a broad spectrum that think this is the case including the 5th circuit having over ruled her twice with scathing opinions already.
Correction 11th circuit
I think all of this is interesting but does not answer the basic question which is whether a President can declassify documents without having to get approval from any person or department or not. Trump claims he can so lets answer that first.
Also, Smith is a weasel. Trying to hold a trial over retention of classified documents without letting anyone see what they are goes to the heart of a fair defense. Biden had far more documents in far less secure locations and there is no question over whether or not he had authority to have them. He clearly did not as Senator or Vice President. Where is his prosecution?
“whether a President can declassify documents without having to get approval from any person or department or not.”
1. This is absurd on its face
2. Trump has already admitted in recordings that he considered the documents classified
“Trying to hold a trial over retention of classified documents without letting anyone see what they are goes to the heart of a fair defense”
1. This is governed by CIPA, thats how this works as standard
“Biden had far more documents in far less secure locations and there is no question over whether or not he had authority to have them. He clearly did not as Senator or Vice President. Where is his prosecution?”
1. Trump had documents in disused showers at a club vs Biden having them in his garage out of public site, so your wrong on this point
2. There is no question that Biden tried to obstruct repeatedly the return of documents, Trump clearly has by a) failing to comply with a lawful subpoena b) moving boxes to evade said subpoena c) lying to his lawyers saying that they had complied with the subpoena d) attempted to destroy evidence that the boxes were moved and e) Trump hasnt even provided a defence of his actions instead opting to challenge the prosecution with legal points not on the actual facts of the case.
1. Where the document was kept is irrelevant. Trump, as President, was completely within his rights to have any document he pleases as he has the absolute ability to determine what is and is not declassified.
Biden had absolutely no right to any classified document as senator or VP.
2. Again irrelevant as Trump, as President, has the absolute right to determine what is and is not classified. Biden, again, had no such right to be in possession of any classified document. Whether the government wanted them back is again irrelevant as Trump is the only one who can determine if something is classified or not.
What you are trying to tell us is that the President does not have the power to declassify what ever he wants without the approval of someone else 😂😂
That is not how the game is played 😂
“1. Where the document was kept is irrelevant. Trump, as President, was completely within his rights to have any document he pleases as he has the absolute ability to determine what is and is not declassified.”
During his presidency sure but not afterwards, and your not responsive to the fact that Trump has already admitted in private conversations that he himself didn’t consider the document declassified.
“Biden had absolutely no right to any classified document as senator or VP.”
Accidentally storing docs then returning them is quite different to obstructing the return of nation defence docs. this is again unresponsive to the facts or the case. Id refer you to the Hurr report which clearly illustrates the differences and the chances of conviction based upon the facts of each case.
“2. Again irrelevant as Trump, as President, has the absolute right to determine what is and is not classified. Biden, again, had no such right to be in possession of any classified document. Whether the government wanted them back is again irrelevant as Trump is the only one who can determine if something is classified or not.”
Repeating the same dumb point isn’t much of an argument.
“What you are trying to tell us is that the President does not have the power to declassify what ever he wants without the approval of someone else”
Presidents do have the right to declassify, that isn;t the issue. The issue is whether he can demonstrate he did which given he has already admitted that some of the documents he was showing Mar a Lago guests were classified makes your position absurd.
“That is not how the game is played”
Generally the law plays with facts and legal consideration, neither of which you have demonstrated any knowledge of
The use of emojis doesn’t improve your lack of argument.
LOL.
I believe that you have actually committed a separate lie with every single word of that phrase. Pretty impressive.
@ThePrimordialOrderedPair
I don’t think you have the intellectual capacity to distinguish truth from fiction so your statement is meaningless.
He accidentally stored documents he had no right to have out of their SCUF at the time he took them out, much less later.
If the document was classified, Biden could not have negligently removed it. It’s marked as such. It was supposed to stay in the SCIF. To get access to it, he needs to have taken classes that teach him about handling classified documents, then refresh it every year. And sign that he had done so. Same, of course, for Crooked Hillary (I know someone who briefed her quarterly, and she verbally affirmed every time that she fully understood the rules).
The fact that he had them in his possession at all outside of a secure facility is a criminal act. He removed them from such a facility without authorization.
President Trump had a SCIF in Mar-A-Lago where he was given classified briefings, the same briefings afforded every other former president.
Until the Biden administration stopped them from being given to Trump and revoked Trumps clearance, because reasons. Then the FBI came sniffing. Weird huh?
the Hurr report which clearly illustrates … the chances of conviction based upon the facts of each case
LOL! The Hurr report basically says that if he weren’t a demented old man the case would likely be slam dunk. The ONLY reason he cites for not bringing the case is the unlikely event of getting any curated jury to harm that senile old man.
@Bruce Hayden
The same applies to Trump but the issue is not taking them when he was properly authorised its wilful retention when no longer authorised. Biden immediately returned the documents upon discovery. Trump continuously avoided doing so despite a)NRA asking b) a subpoena c) a written statement saying that the documents were ALL returned. This didnt turn out to be the case rather finding records in public areas and including Trumps desk.
No it’s not absurd at all. Whether a President has ultimate authority to declassify or not is essential to this case. Trump said he declassified them and they are personal documents, Smith claims Trump needs to ask government bureaucrats. If Trump can then this case is over
The “admission” was not made under oath and could be considered a boast or exaggeration in order to puff himself up. This is something does regularly, no?
All of MAL is secured by the Secret Service. And Biden didn’t just have docs in his garage (likewise NOW guarded by the SS, but not before he was elected POTUS, as former VPs don’t get protection for life). Docs were found in, what, six or seven different locations, none of them secured? And there is no question that Biden’s possession of classified documents was a crime. It doesn’t matter where or under what conditions they were kept.
Not only were none of them secure there was absolutely no way to determine who had access to those documents over the entire course of them being in these unsecured locations. Anyone’s intelligence services could have been accessing these documents when ever they wanted.
This is the same issue with Hillary’s unsecured servers in her shitter. There was absolutely no way of telling what was on those servers and who had access to those servers.
This is pretty spurious, someones garage isnt a public space, i’m not saying that a garage is a secure location per se but its an order or magnitude less secure than a club with hundreds of guests especially when some of those documents were stored in disused showers.
Further the issue isnt really the storage with respect to the law, clearly neither case is ideal. The issue is the wilful retention of unauthorised documents when the government asked for them back and then obstructing
What has always bothered me is that Hur let Biden off the hook because of his current mental condition, when he was not impaired when the crimes took place. Is Hur really stating that Biden is now so impaired that he could not assist in his defense?
Yes, he is. But by doing so he has relieved Biden (or rather his attorneys) from having to raise the issue, admitting he’s incompetent (they wouldn’t lie about that, would they?). So Biden gets the benefit of not having been recommended for charging, but he is also still able to gainsay Hur’s judgement of his mental status.
No, what he said was that Biden would convince a jury that he was a feeble old man who couldn’t remember anything, and the jury would lap it up, feel sorry for him, and acquit him.
And that since it would be impossible to convict him it would be unethical to try him.
It wasn’t just because of Hur’s views on Bidens mental condition Hur made a pretty decent comparison with the Trump case and the underlying facts. Biden returned the docs upon discovery Trump didn’t, he tried to hang on and obstruct by lying and moving boxes. Indeed to this very day Trump hasn’t even argued against the underlying facts of the case, his entire case rests on proving that he could legally retain the documents.
Sure it might have been a boast, although this is still clearly damaging to claims that he magically without any knowing or writing it down declassified documents. ‘Trust me bro’ is pretty damn laughable especially with Trump one of the least compelling witnesses of all time.
Clearly he can. Classification only exists by the president’s word.
No, it doesn’t. The jury doesn’t have to know the documents’ contents, just their status — unless their status depends on their contents, e.g. in scenario A where the difference between presidential and personal records depends on their content, and therefore the jury has to see them to know which they are. Or if Smith wants to argue that the Espionage Act covers documents with national defense secrets even if they’re not classified, then again the jury would have to see them in order to form an opinion on whether they are as characterized. But so long as the argument is not that they contain defense secrets but that they’re classified, then they can have that argument without looking at the contents.
As a juror, how would I know whether the documents are correctly classified without seeing them? Am I required to take Mr. Smith’s word?
What you seem to be asking is either the info contained SHOULD be classified and/or at what level of classification. That’s not the job at hand for the jury. If some idiot over classifies a piece of info (happens ALL the time) as Top Secret then it doesn’t matter if it is his granny’s pot roast recipe everyone is required to handle the info as TS. Dumb? Kinda but otherwise we would have folks trying to decide ‘well, this info doesn’t seem important to me and I don’t believe it should be TS so I ain’t gonna safeguard/handle it that way’. That would lead to big problems. That’s A separate issue from the authority of POTUS to unilaterally downgrade classification; he’s the unitary executive and can’t certainly do so BUT it would be helpful to his defense if he had a contemporary memorandum that memorialized his decision to do it.
Yes. Anybody that has been in the military with a clearance and actually dealt with stuff on SIPRnet knows there’s a TON of ‘classified’ stuff that shouldn’t be, because the rule is as soon as it touches the classified network it becomes classified, and has to be officially declassified, and nobody bothers because its a pain in the ass to do for anything that isn’t actually important.
It’s a well known joke that there’s classified porn because it was on CDs/flash drives that were used to transfer data without wiping it and then were stamped classified.
Im not certain on this but my understanding is that the government will have to decide whether or not to use specific documents in the trial. CIPA involves getting authorisation from the relevant agency use of documents for use in trial. This means that docs that retain there highly classified status wont be used but documents which are deemed less sensitive, out of date could be used if the contents were even required to be seen. I’m not clear if seeing the cover is good enough or if there is some kind of validation process, it might be that other agencies attest to the contents being too sensitive to see, not sure.
The issue with that argument is that no ‘document’ is classified. The information contained within the doc is what is classified. So if there’s a folder with Top Secret stamped on it and a single price of paper with one sentence on it also stamped TS that is clearly classified.
I can’t just take a price of note paper and transcribe the sentence onto it and somehow transform that sentence from TS to unclassified. Similarly if I encounter X piece of Intel on an operation that was previously unknown to the USA then I gotta generate an initial classification for that new information and handle it/protect it using the procedure for info of the classification level I perceive it to be. When I hand off the info to my superiors/unit Intel then they can review it and adjust my initial classification decision up or down.
An important issue here is whether the jury can review the classified document to see if it makes sense. Here’s an absurd example:
I go to Yosemite. I walk into the Park Service dining hall. I transcribe today’s menu on the board there. I then stamp that ‘classified’ and put it into a folder marked ‘classified’. I give it to my superiors at Unit Intel and they agree that my initial classification was justified.
Now then, is that material classified?
In other words, who has ultimate authority to say, “wait a minute, that’s just a menu!”?
And, should that document be introduced as evidence in a trial, whether the jury is entitled to know that it’s a menu and not simply told “it’s classified, trust us.”
Over classification happens every day. Some background on how classification works:
Originator – this is the person who either figures out X info by connecting the dots or stumbles across X info.
The originator of the info makes an initial classification decision based on many factors but the big one is ‘level of harm’ potential to the USA. His superiors can adjust the level of the classification up or down but until someone does so his initial classification decision is binding on everyone even if it is stupidly over/under classified. Otherwise it would be chaos with folks deciding on their own that ‘hey, this doesn’t seem like it should be TS so eff it, Ima treat it like unclassified’ and the actual classification be damned.
If the originator decides that the KFC ‘original recipe’ is TS then everyone must treat the info as TS until someone with both the authority and enough sense comes along and reduces the level of the classification.
The Jury doesn’t get to decide IF the info is classified nor whether the info SHOULD be classified as it pertains to normal classification. The jury might get to decide whether Trump has proved that he declassified the info; A POTUS can do so, even verbally BUT the question is will a jury buy the ‘ ‘hey, I verbally declassified all that so just trust me’ defense, assuming he doesn’t have a contemporaneous memorandum that memorialized this declassification decision.
“I treated it as declassified, therefore I de facto declassified it.” No reason why he shouldn’t be able to shove such an argument down their throats.
Classification of information (and therefore the docs that contain it) is done via delegation of authority, from the POTUS down through the chain of command, to persons who do the day-to-day work of classification. How the classifier might mark a document is as valid as the classification a POTUS might designate. Except that persons in the chain of command above the classifier can alter or remove the classification. This authority to alter or remove the classification goes up the chain of command, with each higher authority able to alter or remove classifications made under them, to the POTUS, from whom all others receive their executive authority, and there it stops, because there is no higher executive authority than the POTUS. This is why his authority to classify and declassify information is plenary and unreviewable. There is simply nobody in the executive chain of command higher than the POTUS. His authority comes directly from the Constitution, which gives no portion of executive authority to any other person, office, agency, or branch of government. Attempts by other branches of government to reign in that authority would be unconstitutional violations of the separation of powers. This is why no statute concerning national security and classified information can apply to the POTUS.
Declaring a “national security” document to no longer be a national security document, that is “declassifying” it, to use the term in its broadest sense, is likewise an exercise of executive authority. A POTUS, as he is able to change the classification of documents marked “secret” by the way he handles them, can almost certainly similarly “declassify” national security information, if for no other reason than there’s no authority capable of telling him he can’t.
Understand it requires more than the stamp you often see on older information. Markings required include WHO classified it, for WHAT reason (there are codes for the basis on which something is classified), and when it was classified and WHEN it will be de-classified.
And the WHO part can only be one of the offices that the President has authorized to do so.
If you did the above, your superiors would likely NOT agree with your assessment, would refuse to pass it to higher for a decision, then would smack your hand for being a dummy. Unless, of course, there was something that needed classifying in that photo.
The only place I will slightly disagree with CommoChief is on the idea that a jury couldn’t decide if something was classified properly. There are specific bits in the law about NOT classifying information – if it’s to provide a benefit to one contractor over another, to hide some law-breaking, etc. So, I could envision a jury being asked to decide if some information met that criteria – IFF a higher-up somewhere decided to take you down for wrongly classifying stuff. And that would be a federal grand jury and probably given days or weeks of instruction on what those stipulations mean. But that’s a maybe, and that’s why it’s only a quibble with CommoChief.
Errrr… mostly correct. The timestamp is when the information will undergo automatic review for declassification. It doesn’t suddenly become unclassified without being examined.
“When I hand off the info to my superiors/unit Intel then they can review it and adjust my initial classification decision up or down.”
And who would your superior’s superior superior be? Who is the ultimate decider?
(This is a rhetorical question – the answer is the President.
Yes but that wasn’t the hypothetical I was addressing. The POTUS absolutely can alter the classification level. He can do so verbally BUT if that declassification decision later became an issue then it would obviously be helpful to have a contemporaneous memorandum that memorialized the declassification decision. Especially if that POTUS found himself facing a hostile DoJ and needing to prove he made that declassification to a jury.
Well not really Commo, especially if he is doing nothing different to how every President before him was done things.
The problem for Democrats here is that they now HAVE to create a process that has never ever existed for the previous 44 Presidents before Trump and say “see, The POTUS has to apply to these subservient public servants for permission to declassify any document he wishes to declassify”.
@mailman
This is just factually untrue, there has been a continuous run of executive orders in relation to classification that dictates process. Trump himself wanted to make the process more onerous which was cited in the indictment, making the penalties harsher if i recall correctly. The indictment merely holds Trump to the law he claimed to want to enforce. The only time he claimed to have the right to telepathically declassify was after the indictment. Its just not a serious question, its absurd on its face.
That’s not Smith’s problem. He’s not in charge of that investigation. Hur is, and he has already announced that he believes Biden is guilty but that it would be impossible to convict him, so it would be unethical to try him.
In that case, It would be unethical to try Trump, as the current president has labeled him Hitler, and Hitler is clearly dead.
The same people who claim Trump is not cognitively sound enough to be president also believe he’s cognitively sound enough to be tried for crimes. These are also the same people who believe that Biden is cognitively sound enough to be capable of another term in the White House, but welcomed Hur’s recommendation regardless of his reasoning.
He isn’t cognitively sound, he is clearly demented that’s been more and more apparent but that’s in regard to his ability to perform one of the most difficult jobs you can do as opposed to mental capacity with respect to whether he can take responsibility for a crime. This just aren’t comparable things
I’m not surprised you missed the point I was making (hint, it’s not the one you decided I was making 😂).
LOL. Jackoff Smith is trying to use a Barky “Executive Order” as if it is law governing the behavior of all future Presidents.
Barky … the guy who couldn’t get the difference between the Constitution and the declaration of Independence straight for a friggin State of the Union address. Barky … the traitor who sold America out at every turn and waged active war against this nation. Barky … the moron who violated the Constitution and all manner of law left and right throughout his illegitimate precedency. Barky … who was not even eligible to hold the office, yet his retarded scribblings should be treated as LAW forever after.
Insane and moronic.
Treasonous, too, if you add in the fact that this is a sham trial that is nothing but an attack by Barky via Traitor Joe on what’s left of America. These people ALL need to be put in prison and have the keys thrown away. Literally. They should be cemented in and left. Old style punishments. Their all-encompassing treason and open war on this nation merits such.
The EO remains binding until a future president revokes or alters it. Trump could have done so at any time, but didn’t. So it remained binding. Not on Trump himself while he was president, but on everyone else, including Trump after his presidency.
Where is the basis for that claim? Is it in the Constitution? Is an EO even binding the President in the first placeor just everybody below the President in the executive?
EOs are not binding on the president. If made on his own authority they’re binding on the rest of the executive branch, since he is their employer and they have to obey his orders. If made on the authority of some statute then the statute says on whom it’s binding. In this case, as I understand it the order is authorized by a statute, so it’s binding on everyone except the current president. Including ex-presidents.
However, President Trump declassified the documents and they did not magically cease to be declassified when his term expired.
Citizen Smith apparently claims either a magical reclassification or denies they have been declassified because the President, on whom the EO is not binding as we have established, did not follow the declassification process of President Obama’s EO.
Per the classic legal advice, Jack Smith is now pounding the table.
Smith wants the trial decided before the jury gets the case .asking an appellate court to determine which jury instructions are appropriate is an advisory opinion which courts do not hear as the same does not determine an actual case but prejudges the guilt or innocence of a defendant Smith should be sanctioned for making such a threat
No, jury instructions represent the judge’s view of the law, so if he thinks that view is wrong he is entitled to appeal them. In this case the judge hasn’t yet decided on the jury instructions, but she seems not to be even contemplating the law as Smith understands it; he believes both of the options she is considering are wrong. So that has to go to the appeals court before the trial starts. But to do so he needs the judge to make an official ruling against his view, so he can appeal it.
Whatever you think of Trump, the PRA couldn’t be clearer. Trump, like any other president, is the sole arbiter of what a personal record is. This case is eventually going to to be dismissed, either by the trial judge or the Supreme Court. And, it’s a shame a great many people are going to be shocked when it happens because they only consume news from partisan mainstream ‘journalists’ and ‘legal experts’ who will contort themselves in pretzel to ignore or dismiss the validity of PRA.
But, I’m also very curious to see what the Court eventually has to say about the propriety of Smith’s appointment…an appointment that CLEARLY violates the plain language of the enabling statute. Now, I don’t know if the Court will acknowledge the illegality of Smith’s appointment but then apply the De Facto Officer Doctrine to protect Smith’s work product. Or, if they’ll dismiss the case because of the obvious infirmity in Smith original appointment. It seems to me – a layman – having a prosecutor who wasn’t confirmed by the US Senate prosecute a US president simply takes us further down the road towards a Banana Republic.
Your right it couldn’t be clearer the PRA gives the NRA jurisdiction over presidential records. This is black and white. Trump had no claim over the documents and this is reflected in the 11th circuit decision
“For our part, we cannot discern why Plaintiff would have an individual interest in or need for any of the one-hundred documents with classification markings. Classified documents are marked to show they are classified, for instance, with their classification level. Classified National Security Information, Exec. Order No. 13,526, § 1.6, 3 C.F.R. 298, 301 (2009 Comp.), reprinted in 50 U.S.C. § 3161 app. at 290-301. They are “owned by, produced by or for, or . . . under the control of the
United States Government.”
Alexandria…?
Alexandria…?
Alexandria…?
The PRA doesn’t say that.
Indeed it does, and nobody disputes that. But it does not give the NRA jurisdiction over personal records, and it does not give the NRA any authority to decide whether a record is official or personal.
Trump and his supporters seem to be claiming that he is entitled to keep anything he likes simply by falsely claiming that it’s personal. That is obviously wrong. He’s not entitled to lie. But the question is can anyone call him on it, and if so who. That is not settled, except that the Archivist definitely can’t.
The two scenarios that Cannon is contemplating are: (A) A jury decides; or (B) The president decides, and if he decides to lie there’s nothing anyone can do about it. Smith’s scenario C bypasses the whole question, because he claims it doesn’t matter whether a record is personal or not, if it’s classified he can’t keep it anyway.
The problem Milhouse is that the PRA doesn’t override the espionage act, the PRA doesn’t give an ex president any rights to claim that a national defence document can be personal. On facts alone this can’t possibly be true. The PRA sets out what a personal record looks like and the 11th circuit explicitly states in relation to this case that they cannot possibly see a way in which these records could be considered personal. So whilst there may or may not be ambiguity on what constitutes personal records in relation to the act in this case it’s already been ruled they are NOT personal. Cannon is simply providing two scenarios that are contrary to the law. It’s also the case that the judge should be deciding how to interpret the law not the jury. She’s delegating her job to the jury in scenario A which is patently absurd.
You still don’t understand the authority of a President as the sole source of all classification authority.
Which boils down to the question that Smith can’t face: *WHO* is the arbiter of what is a Presidential Record and what is a Personal Record? Who has that authority passed to them by the Constitution in Article II, the same authority used in the classification/declassification process?
Is it Janet in the NARA who has forms to fill out and issues decrees regarding the content of files and paperwork? Or is it her boss, the President who has authority over the subordinate agency?
And the second question that Smith quietly avoids: Can an incoming President simply void the determinations the outgoing President made regarding Personal Records and seize them all like the MAL raid, have his own picked team go through them, declare they are all classified, and prosecute him? If so, on January 2025 when Trump takes office, he could do the same thing, right? Seize all of Biden’s records, declare they are classified, and prosecute the senile old man? Thankfully, Trump won’t do that. He’s at least sane.
Considering how he has been treated, Trump SHOULD do that, and he should ask for the death penalty on the old pedophile.
No. Absolutely not. You’d make a martyr of the current President for the next century, and validate his illegal actions which would then turn around and be used against any Republican enemies of the State. Far better to use the FBI as designed, to sort through every legitimate classified document taken and go through the proper procedure to retrieve it if needed, NOT setting up a raid that takes clothes and magazines like the MAL raid. There are enough legal, authentic methods for dealing with classified document leakage, and if the current administration had followed them like every administration before, there would not be a problem. (there also would not be a case in Florida, which is giving the administration a black eye every day to the point where they’re just keeping it alive just to feed red meat to the 10% of their frothing mad base who needs fed or they’ll turn on them)
The authority doesn’t come from the constitution. The distinction between personal and official records didn’t exist until the PRA created it.
The thing is the PRA puts the decision in the president’s hand. It’s pretty clear on what criteria the president should use, and it certainly doesn’t authorize him to lie, but it doesn’t way what happens if he does lie, and how anyone is to determine that anyway.
The Clinton sock-drawer case said that at any rate the Archivist cannot second-guess the president’s decision. Even if the Archivist has solid reason to believe the president has stolen an official record by designating it “personal”, there’s nothing he can do about it.
What the case doesn’t say is whether anyone else has that authority, and if so who. ABJ noted that the Congress that passed the PRA seems to have believed presidents would never lie about it, so no provision needed to be made for that eventuality.
“Trump, like any other president, is the sole arbiter of what a personal record is.”
Why this is so is the subject of one of my posts above. Congress couldn’t make legislation that says otherwise, because such legislation would violate the separation of powers. The classification and declassification (using the terms in their broadest sense, i.e. “categorizing”) of documents and information is an executive function over which Congress has no authority.
Note the PRA didn’t grant this authority to the POTUS (Article II does), it merely acknowledges it.
I’m not sure I agree entirely. There is a law about record keeping, and not letting documents that reflect decision-making and some other things get lost. There are definitions in it, and the record-keeping law should apply uniformly (so there shouldn’t be any separation of powers issue – Congress can write laws that affect the Executive branch). So it should (for the most part) be a matter of “Did he provide the proper records to the Archives under the law?” If he keeps copies I don’t think the law would be a problem. But there are some clear lines (and some other gray areas).
Every ‘classified’ document that Trump supposedly took is a copy. The originals are stored elsewhere. And *who* would determine if the outgoing President gave the proper records to the Archives? Whoever it is, would then have taken the President’s Article II power from him. “The Buck Stops Here” is more than just a sign on the Resolute desk.
Smith has a problem, a big problem. He cannot allow it to be revealed that Trump kept in his underwear closet a top-secret CIA report from a major special operation aimed at spying on who peed in the bed at a hotel in Moscow. And how much did the American taxpayer pay for these CIA efforts to strengthen US defense.
I’m more shocked at the prospect of the prosecutor appealing jury instructions. I didn’t even know that was possible, and seems especially problematic. It completely upends the concept of a trial. All an attorney needs to do is appeal the jury instructions and it adds a massive delay to the proceedings. What’s to stop every attorney in every case from appealing. Even if the appeal is rejected it still needs to be reviewed and that completely stops the judicial process.
If the 11th circuit is smart they will quash this before it gets started.
This is just a gross misunderstanding of what’s happening. Smith is appealing ILLEGAL jury instructions which if allowed to proceed would mean essential create a scenario where head Trump wins tales Jack Smith loses and be unappealable due to jeopardy being attached.
Cannon is obviously trying to push the trial in a direction that increases the odds of a jury acquittal. But judges put their thumb on the scales all the time, don’t they? J6 for instance. The most important thing in the courtroom is the judge and the jury pool. This is why prosecutors can win weak cases and lose strong ones, like OJ Simpson.
NARA, using their authority under the PRA, is who made the criminal referral in the first place. So if the indictment cites the PRA, using that law’s points of fact itself is an “illegal” jury instruction?
The FBI and the DoJ used NARA as their foot in the door and now want to tell us to ignore that and use another law instead — the Espionage Act. A law which does not apply to a sitting president because it usurps Article II powers to do so.
Jury instructions can’t be “illegal.” They may be mistaken, but they can’t be crimes. At least I’m not aware of a judge who was tried and convicted of giving “illegal” jury instructions. The instructions reflect a judge’s beliefs and understanding of the law. Having an opinion is not a crime, nor is it illegal.
A Trump attorney should insist that the jurors have a right to judge the law as well as the facts. (Please don’t say courts have ruled they don’t have that authority. Courts have ruled jurors don’t have a right to be told they have that authority. There is nothing stopping an attorney from insisting they should be told except for threats that may come from the judge for daring such a thing.)
Perhaps they should be crimes, but I don’t think they are, yet.
Just a couple of things that you really need to work on.
1: You should really learn to use the word “allegedly” in its proper context. Such as “appealing allegedly illegal Jury instructions”. Just because you type it in all Caps doesn’t add to your argument in fact it makes you look whiney and inept. There is also the simple fact that since no court has ruled on the issue none of the 3 opinions are “illegal”.
2: Simple point; just because Jack Smith disagrees with something does not make it illegal. It’s not his fault he is a 2nd rate litigator, that’s just genetics.
3: There is the old legal “”If you have the facts on your side, pound the facts; if you have the law on your side, pound the law; if you have neither the facts nor the law, pound the table.” It is becoming increasingly clear that Jack is down to pounding the table, which is never a good sign. But that also seems to be his signature move.
Barte doesn’t use the word allegedly because like all Democrats he believes Trump IS guilty of treason or what ever the fuck Smith is saying Trump is guilty of.
We read all the time about defendants winning new trials due to faulty jury instructions. Obviously, this happens due to an appeal. Thing is, these appeals are usually lodged after the trial is complete, meaning they are available only to the defense, because prosecutors cannot retry acquittals. I agree that the concept of a prosecutorial appeal in mid-trial is something I’m still struggling to wrap my head around.
A judge, based on her understanding of the law, can direct a jury to acquit. Giving instructions to the jury that accomplishes the same thing is almost certainly within her authority. Why would the latter be reviewable when the former is not? (Or am I mistaken?)
Of course it’s possible; it has to be. How else could it possibly work? The jury instructions are the judge’s view of the law, and if that is wrong only an appeal could correct it. And the appeal has to happen before jeopardy attaches.
Julie Kelly points out:
But the application for the search warrant on Mar-a-Lago specifically mentions PRA while giving passing reference to the Obama executive order that Jack Smith now argues is the animating law behind Espionage Act.
Hmmmm.
President has plenary authority to determine whether documents are classified. This plenary authority does not require said president to request approval authority from subordinates or their departments. Executive orders are for the purpose of a president (the Executive) to give execution instructions to subordinates in their respective roles. An executive order is not a law and applies only to subordinates.
So, how does an Executive Order from a previous president to subordinates in the departments mandate a current executive to follow an order that applies to the subordinates?
To argue against his would be to say that a POTUS issues EOs to control his own actions, which would be a ridiculous assertion.
As mentioned above, it might be a really good idea* to have a process whereby a President documents de-classification, so he doesn’t have to face lawfare after he leaves office. But you can’t really take the power away from him.
(* I think it should get encoded into law so that everyone knows it’s there and how it protects the President’s rights. But even that is a “good idea” to prevent problem people from creating problem situations.)
This only needs to happen now because Democrats have decided to weaponise EVERYTHING to get Trump.
The world was a better place when this wasn’t needed…back when people had to good grace not to be arseholes and go after their political enemies with every arm of the Government.
It didn’t, while he was president. And while he was president not only did it not bind him, he could also have changed or revoked it. But he didn’t do that, so the minute he was no longer president it bound him.
That does not make sense. An EO does only bind subordinates of the President, and while Trump was President he was not a subordinate of the President, and he was never a subordinate in the executive of either his predecessors or his successor. It follows that he was never bound by any Obama EO nor by any Biden EO.
any wonder biden is pushing for more left wing radical judges to be appointed.
The PRA is a collection of filing instructions. That’s all. There are no criminal penalties, no enforceable directives. It covers Presidential Records, and leave Personal Records to the President with a bit of a “hands off, not yours” to the NARA. In doing so, it gives incoming Presidents guidelines for how to exercise their Article II powers, generally what should get filed where, and what they can take with them when they leave and what should be archived at Government expense (with unlimited access by the ex).
Every classified document held by the President is a *copy* with the original stored and all copies notated. If he winds up holding a document the new President wants back, the ex is notified as every ex has been notified since Nixon. The ex either sends the doc back with a “oops, here you go’ or a ‘can’t find it’ or a ‘no, I’m keeping it.’ In case of No, the current President can either “Oh, well” or “Tough, I’m suing to get it back” and take the dispute to the courts. That’s the way it worked and had been working right up to the MAL raid, when the current President shattered decades of working precedent. (and my personal opinion is the FBI pushed the whole thing to get the originals from Crossfire Hurricane back, in which case there should be mass firings in 2025)
There should be mass firings even if that wasn’t the reason.
No truer word has been spoken. I’m not convinced the FBI as currently constituted is even rescuable.
Is there any law or “executive order” that supersedes powers delegated under Article II of the constitution? The prosecution is arguing there is, the defense is arguing there isn’t.
Every classification marking or designation is done for the benefit of the president, and that is to keep information secret UNTIL the president sees it. Once the president sees it, he can either keep it classified or he can throw it in the trash (or take it home with him).
Did Trump remove the documents within the timeframe of his term? Yes? Case dismissed.
In a nutshell, the prosecution’s position is that the Presidential Records Act applies to all former presidents EXCEPT President Trump. Judge Cannon’s order simply exposed that absurdity.
If the feds want go to the 11th Circuit before trial, they may get their wish. But this Judge still will be the judge for the trial.
Is this really true? I see a lot of media chatter by former WH lawyers that say the 11th Circuit will remove Cannon from the case.
I would think appellate courts would be hesitant to remove a sitting judge BEFORE a trial concludes.
And even then when it concludes would either say redo the case or “yeah nah it’s all good brah”.
Wishful thinking, mostly. The ‘former WH lawyers’ want her removed and a partisan Democrat shoved into the seat so the new judge will happily rubber-stamp every nutty motion Smith puts forward.
the problem for Jack the Hack is at least 6-8 jurors will be MAGA
the best he could hope for is a hung jury
Jack the Hack is obviously nervous about not getting a trial before the election
he wants to Ted Stevens Trump
convict before the election and the appeals will be after the election
THis issue will be eclipsed if not forgotten when Judge Cannon agrees with several motions disqualifying Jack on the grounds he was improperly appointed in violation of the Constitution. See the Meese brief for reference. Jack can appeal but even if he pevails it will be long after the election and Smith and Garland willeither have taken up residence in Havana of be on their way to Gitmo based on any number of serious crimes. Does anyone here tyruly belive that MAGA will foget these crimes against our Cinstitution? I htnk not. Read about MAGA preparations at ispeakfortrump.
Trump has repeatedly said that the photo displayed at the top of this article of secret files was staged, and that he has home video to prove it was staged. But he still hasn’t released the video. Why not? Is he bluffing?
Aww, Jackie isn’t getting what he wants and his panties are getting twisted? Poor baby… Maybe he should admit that he is a pile of steaming crap and get over it…
Trump’s PRA argument does not hold water.
44 U.S.C.A. § 2201 (3) states “The term “personal records” means all documentary materials, or any reasonably segregable portion therof,1 of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President. Such term includes–
(A) diaries, journals, or other personal notes serving as the functional equivalent of a diary or journal which are not prepared or utilized for, or circulated or communicated in the course of, transacting Government business;
(B) materials relating to private political associations, and having no relation to or direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President; and
(C) materials relating exclusively to the President’s own election to the office of the Presidency; and materials directly relating to the election of a particular individual or individuals to Federal, State, or local office, which have no relation to or direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President.
44 U.S.C.A. § 2201 (West)
Do you want to tell us how it doesn’t hold water?? Or just leave us guessing 😂
Sure. Its not complicated. The things he is calling “personal records” do not meet the controlling statutory definition of being “purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.” 44 U.S.C.A. § 2201 (3).
Game, set, match.
True. The question, though, is who has the authority to decide that. In the Clinton case the judge found that the Archivist does not. She didn’t actually find that nobody does, but it’s one of the possibilities she left open. And that’s Judge Cannon’s “scenario B”.
Unless we know what was in the documents we have no idea where they fall. However, as pointed out, it comes down to who has the ultimate authority to declassify things. Does the Archivist, a rabid leftist, have authority over the President? If so, this throws the entire system of Government into turmoil with the permanent bureaucracy truly in charge and politicians as powerless figureheads to appease the masses. It appears to me that we are firmly on the way to the last part with all the political hitjobs by the Federal law enforcement and rulings by the EPA for example.
Who controls that definition?
What person are you putting above the president?
It depends what Trump is actually claiming about it. If he claims it lets him keep whatever he wants, just because he wants it, then no, it clearly doesn’t do that. It requires him to properly decide, every time he creates a document, whether it’s official or personal, based not on his wishes but on its actual contents. And it says official documents belong to the nation, and if the president takes one by pretending it’s personal he’s stealing it.
But as the judge in the Clinton sock-drawer case pointed out, the PRA trusts the president to do this honestly. And it doesn’t say what can be done if he doesn’t.
If we are to believe those who’ve seen these documents, they are clearly official documents and not personal. (Obviously none of us have seen them, so we can’t form our own view.) But that doesn’t mean anything can be done about it. I
Hence the three secenarios:
A. The jury can see the documents and decide whether Trump was correct about them being personal.
B. Nobody can override Trump’s decision, even if they know for certain that he lied.
C (Smith’s position). The question is irrelevant, it doesn’t matter whether a document is official or personal, because if it’s classified and his clearance has been revoked then he can’t have it even if it’s personal. The PRA, according to this, applies only to documents that are not classified.
Random question:
If, under Jury instruction A the jury is to review the documents, and the Prosecution’s position is that some, many, any, of the documents are classified, and that Trump did not (properly) declassify them, wouldn’t all the jury members have to receive security clearances in order to examine them?
BartE is a wretched leftist troll whose job is to sow distraction and despair, and waste decent people’s time. It seems likely to me that he gets paid by the number of responses he provokes. He makes me wish LI used Disqus so that I could block him.
It comes down to the old adage: don’t feed the trolls.
If you consider facts about the case despairing that’s not really my problem. It seems to be that a lot of LI readers seem unable to cope with there feelings being challenged by facts
It is my understanding that Trump has claimed h e declassified the documents.
“As the new ABA Legal Fact Check notes, the extent of a president’s legal authority to unilaterally declassify materials — without following formal procedures — has yet to be challenged in court.”
https://www.americanbar.org/news/abanews/aba-news-archives/2022/10/fact-check-presidential-authority/
Who would be the approving “person” for a President to apply to declassify something?
I hear you. The president has total authority, IMO.
This has been my point all along. The Executive Branch is co-equal with the other 2. Not subservient or dominant. If Trump claimed he declassified the documents in question then took them as personal documents as they contained conversations or whatever he wanted who is Garland, Smith or the Archivist to say different.
Much like everything else Trump, he has driven the Dems and The Cathedral so mad with TDS that we are going to get a bunch of things settled by SCOTUS and rules changed that have never come up. Much like judicial appointments, this may not work out for Progressives to their liking in the end
Trump being an obvious criminal in black and white terms given the law pretty much makes your position absurd.
It’s pretty clear the TDS is there trunpists pretend that Trunp is above the law and can’t be held to account by making the most spurious and inane comments they can possibly come up with
Never piss off a federal judge. Not unless you want to see your case scuttled.
Seen that in several occasions in the EDLA.