Disclaimer:
https://twitter.com/McAdooGordon/status/1667523694330036225
Fortunately, I’m just here to read and puzzle over the unprecedented indictment of President Trump [PDF link] with the rest of y’all. I’ve no idea what will actually happen with the case, which is now at least initially assigned to Judge Aileen M. Cannon of the U.S. District Court for the Southern District of Florida. When last we saw Judge Cannon in these pages, she had, in response to President Trump’s civil motion, appointed a special master, former FISA judge Raymond Dearie, to review the documents seized by the FBI in their raid of his Mar-A-Lago resort home, and the Biden Justice Department had gone to great lengths to challenge the special masters’s review of the documents, ultimately keeping the “documents having classified markings” from being examined by him (or for that matter anyone, including President Trump’s attorneys).
I’ve been paying attention to this legal struggle for quite some time, and now that the indictment has been unsealed —and equipped with a TN law license almost never used in court— I’ll risk my anonymous reputation to offer my observations, at no charge. Allons-y!
President Trump has been indicted on 37 counts, 31 of which are based upon Willful Retention of National Defense Information under 18 U.S.C. § 793(e), the “Espionage Act” of 1917, which provides criminal penalties of up to 10 years and a $250,000 fine for
(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…
One peculiarity of applying this statute to a former President of the United States is that by definition, he will, as a result of his federal service have “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” in his head, to the highest degree, documented or not, “authorized” or not, and cannot help but “willfully retain the same.”1 None of the 31 documents President Trump is charged with “willfully” retaining in an “unauthorized” manner would contain any information “relating to the national defense” President Trump hadn’t had access to or seen before as Commander-In-Chief.2
As I’ve discussed previously, the governing statutory law pertaining to the records of a former Presidential administration, the Presidential Records Act (PRA) 44 U.S.C. 2201, et seq. contains a provision3 guaranteeing the former President access to the records of his administration, access which he may delegate to a designated person or persons. So even though the custodian of his presidential records under the PRA is the National Archives and Records Administration (NARA), and not the former President personally, he has a legal right to see any of his administration’s documents, classified or not, and to designate others to exercise that right on his behalf.4 Prior to the enactment of the Presidential Records Act in 1978, a former President’s records were considered his own property.5 Since January 20, 1981, the Act’s effective date, presidential records governed by the PRA are U.S. government property.
The indictment’s use of the Espionage Act presents a problem in statutory interpretation of the kind the U.S. Supreme Court often deals with: How to reconcile two laws passed by Congress so that they work together. The Presidential Records Act is the governing statute in this set of facts for a number of reasons:
The Presidential Records Act is the specific law passed by Congress governing the disposition of presidential records.
The PRA was enacted later in time than the Espionage Act, and must be presumed (or interpreted) to be in harmony with it (that is, Congress is presumed to have known the Espionage Act existed when the Presidential Records Act was passed, and didn’t intend for the two to be in conflict),6 and
Both laws must be in harmony with the U.S. Constitution.
Because the Presidential Records Act is not a criminal statute, it was the intent of Congress that the disposition of the records of a former presidential administration be a matter of civil, rather than criminal law (after all, prior to its passage, the former President’s records were considered their own personal property). There are no criminal penalties attached to the PRA.
Indicted along with President Trump is his personal valet and driver Walt Nauta, who served President Trump in the White House, and continued in that capacity into his post-presidency as a personal assistant. Nauta, a former U.S. Navy Chief Petty Officer, is described by the indictment as President Trump’s “co-conspirator” and is part of six of the seven remaining charges (about which more later), which include conspiracy to obstruct justice and false statements.
Beginning with a summary of the parties and the facts as alleged by the prosecutors, the indictment says:
2. Over the course of his presidency, TRUMP gathered newspapers, press clippings, letters, notes, cards, photographs, official documents, and other materials in cardboard boxes that he kept in the White House. Among the materials TRUMP stored in his boxes were hundreds of classified documents.
(¶2, p.2)
Segregating records into "presidential records" and "personal records" is a requirement of the Presidential Records Act, specifically, 44 U.S.C. §2203(b). By including the allegedly classified documents in the boxes containing "personal records,"7 it can be argued that the President expressed his intent to declassify and retain personal copies of them, as permitted by the Presidential Records Act, specifically 44 U.S.C. §2201(2)(B)(iv), which excludes "extra copies of documents produced only for convenience of reference, when such copies are clearly so identified," from the definition of "presidential records." One would assume that the documents he retained were not the only copies, or someone would notice they were missing.
4. At 12:00 p.m. on January 20, 2021, TRUMP ceased to be president. As he departed the White House, TRUMP caused scores of boxes, many of which contained classified documents, to be transported to The Mar-a-Lago Club in Palm Beach, Florida, where he maintained his residence. TRUMP was not authorized to possess or retain those classified documents.
(¶4, p.2)
What is the actual timeline? The affidavit of probable cause which supported the Mar-A-Lago raid, sworn to by a publicly unidentified FBI agent, referenced a CBS News report to breathlessly claim "at least two moving trucks were observed at the PREMISES [Mar-A-Lago] on January 18, 2021." You might notice that, as of January 18, 2021, President Trump was still President. TRUMP was most certainly still "authorized to possess or retain" classified documents on January 18, 2021.
And if the documents in question are in fact declassified copies which he chose to retain as "personal records," there would still be no problem with that under the Presidential Records Act after he was no longer in office. Moving the documents to Mar-A-Lago while he was still President would be another, independent expression of the President's intent to declassify and retain personal copies of the documents.
The indictment makes no direct reference to the Presidential Records Act, presumably because the PRA is not a criminal statute, and the indictment is a prosecution document. As described in the indictment (¶8(a-c), p.4), President Trump retained a grand total of 337 "documents with classification markings," 102 of which were found as a result of the FBI raid, with the others being provided either voluntarily, or in response to the grand jury subpoena.
What is the nature of the purportedly classified documents? The prosecution says:
3. The classified documents TRUMP stored in his boxes included information regarding defense and weapons capabilities of both the United States and foreign countries; United States nuclear programs; potential vulnerabilities of the United States and its allies to military attack; and plans for possible retaliation in response to a foreign attack. The unauthorized disclosure of these classified documents could put at risk the national security of the United States, foreign relations, the safety of the United States military, and human sources and the continued viability of sensitive intelligence collection methods.
(¶3, p.2)
Interestingly, the indictment makes no allegation that the specific documents in Counts 1-31 which TRUMP is charged with “willful” and “unauthorized” retention of, were ever “unauthorizedly” disclosed to anyone. The dispute, as it stands now, is simply about his alleged “unauthorized” retention of them, and unwillingness to surrender them to NARA, in response to a criminal grand jury subpoena which NARA’s governing statute, the Presidential Records Act, does not provide for. The indictment alleges that President Trump talked about and displayed a couple of other documents to others who did not have a security clearance, but those conversations have not been charged as offenses in the indictment.
5. The Mar-a-Lago Club was an active social club, which, between January 2021 and August 2022, hosted events for tens of thousands of members and guests. After TRUMP's presidency, The Mar-a-Lago Club was not an authorized location for the storage, possession, review, display, or discussion of classified documents. Nevertheless, TRUMP stored his boxes containing classified documents in various locations at The Mar-a-Lago Club-including in a ballroom, a bathroom and shower, an office space, his bedroom, and a storage room.
(¶5, p.2, emphasis added)
The obvious implication being that prior to the end of TRUMP's presidency, Mar-A-Lago was an "authorized" location for all those activities. It only became "unauthorized" either by operation of law at the end of President Trump's term, or by an intentional act of the Biden Administration making it so.8 [Is there an executive order about Mar-A-Lago which President Biden revoked to create this “unauthorized” situation?]
The indictment makes a big show of photographs of various boxes at locations within Mar-A-Lago in the weeks immediately following President Trump’s term of office, and the publicly available PDF of the indictment shows these photos in poor quality black and white (color images from the indictment were tweeted out by @ArdenFarhi of CBS News).
As the indictment states, a grand total of 337 "documents with classification markings” were retained by President Trump, intermixed with what are many boxes of what are indisputably President Trump’s “personal records” under the Presidential Records Act, and out of all these boxes, he is being charged with “unauthorized” retention of 31 specific documents.
One of the documents, described in Count 11 as “Undated document concerning military contingency planning of the United States,” and found by the FBI during their August 8, 2022 raid, apparently has no classification markings, which would arguably make it not responsive to the grand jury subpoena seeking
Any and all documents or writings in the custody or control of Donald J. Trump and/or the Office of Donald J. Trump bearing classification markings, including but not limited to the following: Top Secret, Secret, Confidential, Top Secret/SI-G/NOFORN/ORCON, Top Secret/SI-G/NOFORN, Top Secret/HCS- 0/NOFORN/ORCON, Top Secret/HCS-0/NOFORN, Top Secret/HCS-P/NOFORN/ORCON, Top Secret/HCS-P/NOFORN, Top Secret/TK/NOFORN/ORCON, Top Secret/TK/NOFORN, Secret/NOFORN, Confidential/NOFORN, TS, TS/SAP, TS/SI-G/NF/OC, TS/SI-G/NF, TS/HCS- 0/NF/OC, TS/HCS-0/NF, TS/HCS-P/NF/OC, TS/HCS-P/NF, TS/HCS-P/SI-G, TS/HCS-P/SI/TK, TS/TK/NF/OC, TS/TK/NF, S/NF, S/FRD, S/NATO, S/SI, C, and C/NF.
Why is President Trump being charged for “unauthorized” retention of this particular document, one might ask, when the indictment says it contains no classification markings, and it was not produced in response to the grand jury subpoena? Because under the Espionage Act, the classification status of the documents doesn’t matter, they simply have to be a document “relating to the national defense” or containing “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.”
8.(c) On August 8, pursuant to a court-authorized search warrant, the FBI recovered from TRUMP's office and a storage room at The Mar-a-Lago Club 102 more documents with classification markings.
(¶8(c), p.4)
So the evidence for the statement that "TRUMP stored his boxes containing classified documents in various locations at The Mar-a-Lago Club-including in a ballroom, a bathroom and shower, an office space, his bedroom, and a storage room" is what, given that the FBI raid only found documents with classification markings in "TRUMP's office and a storage room"? The affidavit contains many pictures of storage boxes in these other locations, but given that we're talking about, at most, 337 documents, what is the factual basis for claiming that documents with classification markings were in any of these other areas?
In any case, the location of the boxes within Mar-A-Lago is legally irrelevant for the “unauthorized” retention counts, it just matters that they were at Mar-A-Lago, which became an “unauthorized” location for them to be at some point after President Trump’s term ended.
12. The United States Secret Service (the "Secret Service") provided protection services to TRUMP and his family after he left office, including at The Mar-a-Lago Club, but it was not responsible for the protection of TRUMP's boxes or their contents. TRUMP did not inform the Secret Service that he was storing boxes containing classified documents at The Mar-a-Lago Club.
(¶12, p.5)
Assuming that any of the documents with classified markings were in fact still classified.
17. Pursuant to Executive Order 13526, information classified at any level could be lawfully accessed only by persons determined by an appropriate United States government official to be eligible for access to classified information and who had signed an approved non-disclosure agreement, who received a security clearance, and who had a "need-to-know" the classified information. After his presidency, TRUMP was not authorized to possess or retain classified documents.
(¶17, pp.6-7, emphasis added)
The last sentence here is the central legal dispute of the documents case. However, under the Presidential Records Act, a former President does have a statutory right of access to all his presidential records, which would include classified information, so the relevance of E.O. 13526, which purports to govern the access to classified records by the former President of the United States (among others), isn’t clear.9 That President Trump could not lawfully retain classified documents after the end of his presidential term is, so far as I'm aware, undisputed. Although the “unauthorized” retention charges under the Espionage Act do not require that documents be marked classified as an element of the offense, the classification status of the documents he retained is still relevant evidence, because it is relevant to his defense based on the PRA. Given that it's public knowledge now that several former federal officials, including Joe Biden, did in fact retain documents having classified markings and have not been prosecuted for doing so, this indictment raises a clear indication of selective prosecution.10
18. Executive Order 13526 provided that a former president could obtain a waiver of the "need-to-know" requirement, if the agency head or senior agency official of the agency that originated the classified information: (1) determined in writing that access was consistent with the interest of national security and (2) took appropriate steps to protect classified information from unauthorized disclosure or compromise and ensured that the information was safeguarded in a manner consistent with the order. TRUMP did not obtain any such waiver after his presidency.
This paragraph seems to be a bit of a red herring, because a former President’s statutory right of access to the records of his administration is not qualified by any such requirement in the Presidential Records Act, which is primarily concerned with keeping access to the records limited for up to 12 years, not keeping the former President from accessing the records of his own administration. How the lower courts, and eventually the Supreme Court, will reconcile this 2009 Obama Administration executive order, the provisions of the 1917 Espionage Act, and the 1978 Presidential Records Act is a complex question. However, had Congress intended for the federal bureaucracy to control access to the classified information of a former President by that former President (or his designee), Congress could have so provided in the law.
I’m running out of space for this installment11, so I’ll repeat the quotation cited by President Trump’s attorney M. Evan Corcoran in a letter responding to the Biden Department of Justice concerning their assertion that a President must follow any particular statutory or bureaucratic procedure to declassify information. In Dept. of the Navy v. Egan (1988), Justice Harry Blackmun, writing for the 5-3 U.S. Supreme Court majority, said:
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.
p.527 of the opinion (emphasis added).
For the President, who is the embodiment of the Executive Branch under our Constitution, the “secret stops” (and begins) with him.
—end—
In this regard, President Biden is of substantially lower risk of retaining such dangerous information, due to encroaching senility. But seriously, the Espionage Act does make it a federal crime to “willfully” retain national defense information and not “deliver it to the officer or employee of the United States entitled to receive it,” which appears to be a crime of omission, such that someone who found out information about an important enemy war plan and didn’t reveal it to the proper authorities could be charged with “willful” retention of that information. In the case of the President, though, who’s receiving such information all the time, he’s under no obligation to “deliver it to the officer or employee of the United States entitled to receive it,” because he’s at the top of the national intelligence pyramid. There’s nobody higher to deliver it to.
The question of what “unauthorized” means in the Espionage Act in relation to a former president is another matter worthy of some discussion.
44 U.S.C. §2205(3).
This delegation is done in writing, and has somewhat of the effect of naming an executor of his presidential records, who can act on the former President’s behalf in the event of his death or incapacity prior to the expiration of the 12 year period of limited public access to the records under the PRA. President Trump wrote such a letter prior to his leaving office, though he has reportedly revised this designation since then.
The Presidential Records Act: An Overview (Congressional Research Service, 2019), p.1 [PDF link]. The statutory right of access by a former President to his presidential records seems to be one of the benefits of the bargain for the Chief Executive in complying with the Act’s provisions, in addition to the 12 year period of limited public access to the records.
See note 9, below.
As “newspapers, press clippings, letters, notes, cards, photographs, official documents, and other materials” would appear to be.
The bitter irony of Joe Biden’s administration prosecuting President Trump criminally for storage of allegedly classified information at Mar-A-Lago, when it was revealed that Biden himself had apparently stored classified information in multiple locations, including his garage, unnoticed, for years.
The statutory right of access found in the PRA appears to derive from both the historical practice of presidential papers being the former President’s private property prior to the enactment of the Presidential Records Act, and, so far as national secrets contained within those papers are concerned, the President’s inherent constitutional authority as the Commander-In-Chief, which makes him the ultimate source of classification and declassification authority. Because the PRA makes no distinction between classified and unclassified presidential records, and makes the former President’s right of access able to be delegated to others, without regard to “need to know” and other specifics of the classification system, this suggests that the PRA takes precedence over the classification system, as least where a former President’s presidential records are concerned.
Indeed, President Trump himself, apparently out of magnanimity and concern for the effect on the country, chose not to pursue his former political opponent, Hillary Clinton, on similar charges for her insecure email server, despite having argued during the 2016 campaign that she should be prosecuted. Some norm-breaker, that Trump!
I’ve got the Substack “Post Too Long For Email” warning, so I’ll have to continue this article in Part 2.
And here's Part 2.
https://darulharb.substack.com/p/the-secret-stops-here-pt-2
When Trump returns to office, it is necessary that he prosecute Hillary Clinton (assuming statute of limitations allows) and Biden under Espionage Act or any other applicable law, for mishandling information. Pence too, as there is no Vice Presidential Records Act. Lawfare will be waged until the lawfare warriors pay a price.
While he's at it President Trump should push Congress for a law punishing any federal worker or federal contract employee who violates the enumerated rights of any US citizen. That ought to reign in some abuses of first and second amendment guarantees. The prosecutors and jailers of January 6th protestors need to meet harsh justice for the pain they have imposed on those defendants.