I didn't initially plan to write a follow-up to my weekend post on the Trump/FBI kerfuffle. But I did want to emphasize a few points.
I continue to focus on Trump's attempt to define away his wrongdoing in having custody of classified information by claiming he had preemptively declassified them I don't want into the weeds here (and I'm not a lawyer) but basically the authority for the data classification ultimately is an administrative framework, not a statutory framework, stemming ultimately from POTUS' authority as Commander-in-Chief. You could argue that Trump, while President, could have overhauled, redesigned, even eliminated the existing classification system. Plus, he didn't necessarily have to embrace past practices, and could implement undocumented, ad hoc or inconsistent policies. The problem is that without well-defined, documented processes and due process. it becomes unmanageable, inconsistent arbitrary, and unreliable. I don't know the nature and extent of the nation's secrets, but I would think that given the President's many responsibilities, he doesn't have the time to micromanage the nation's secrets; Typically this authority is delegated and guided through administrative management guided by executive orders.
I am calling Trump's bluff on this fictitious standing order to declassify all classified data accompanying his travel. It comes across as a convenient rationalization after the fact of getting caught with classified information at his mansion post-Presidency. Trump has always exaggerated his "unlimited power", sweeping claims of executive privilege, etc.But I saw a CNN interview with Trump's former National Security Adviser John Bolton who flatly contradicted Trump's claim. From my own exposure to classification there should be a paper trail of document changes. From what I understand, none of the classified documents in Trump's possession at Mar-a-Lago showed evidence of declassification markings. This doesn't prove that Trump didn't declassify documents in question, but if true, Trump or his subordinates did not comply with standard declassification processes. We would need evidence of the declassification. a published executive order modifying declassification procedures; the burden of proof is on Trump; I would argue an application of Ockham's razor.
The point is that the revelation of secret (or above) classified data poses serious or gravely serious damage to national security. You could argue that POTUS is accountable for any blowback on improper disclosure. I don't know how Trump could appraise the content of a classified document without doing due diligence of context. With a blanket declassification order, it's insensitive to situational context. I don't know how you could estimate timely release relevant to Trump's schedule.
I don't know the specifics of how Trump handled classified briefings outside the White House, I think I read somewhere that at a couple ot Trump's golf clubs the government built security enhancements to a couple of meeting rooms. The reason I point this out is because it didn't require declassification of matters underlying briefings.
Of course, all of this matters for a reason: once Trump left the White House, he lost his authority over classification matters He no longer had a "need to know", a key point in access to classified materials. Furthermore, he didn't have SCIF-like vaults for storing classified data, and I'm not aware of any vetting of individuals at Mar-a-Lago with potential access to the documents.
There are some reports that Trump was involved in some packing activities. Did he himself pack classified documents? It's possible Trump wanted some documents for writing his memoirs, but this is purely speculative. I would like to think to think the government had crosschecked its inventory of classified documents in the wake of Trump's departure. In my earlier post I had speculated on a NARA liaison office on site. What we know is there is an ongoing conversation between NARA and the President's office in support or the Presidential Records Act. There are references in the media too staffers scotch-taping documents Trump had ripped up while POTUS.
We know Presidential records are due when POTUS leaves office. I haven't seen a good write-up of what happened between NARA and the White House.during the year after Trump left office to when NARA took possession of 15 boxes last January. Were there missing boxes of accumulated documents missing? Was it that certain notorious records were reported missing, like Trump's notorious correspondence with the Norrh Korean dictator? We know of at least one informant (Secret Service?) who tipped off NARA/FBI of additional classified material not included in those 15 boxes. It does seem, at least in one timeline I've seen, that NARA was aware of unspecified classified documents among the materials moved to Mar-a-Lago late last year (same source?) I've heard at least one Trump lawyer signing off that all classified documents were included in the NARA pickup. We know by June DOJ was aware of of Trump boxes stored in a Mar-a-Lago storage room and Trump lawyers agreed to padlock it. And, of course, we now know that there were 11 sets of classified documents seized during the FBI search.
Some readers might find it counterintuitive that I as a libertarian would feel so strongly about safeguarding the nation's secrets: why aren't I like Manning and Snowden? I'm a minarchist who believes in a common defense. I also believe in honoring my voluntary contracts, some of which hold lifetime commitments.. I don't make excuses for other people who don't honor theirs. I take my commitments seriously and keep my record clear. I recall in late 2019 I was due to start a new contractor job in Pennsylvania which fell through for some last minute reason to this day which remains unexplained. So when I see Trump and others fail to comply with the same rules, it's a manifest violation of equal protection.
One fact about Trump's personality I have repeatedly tweeted and blogged about is his impulsive, undisciplined personal style. In my judgment as a former business school professor, it's not indicative of effective management. To those of us who have faithfully played by the rules, the double standard is appalling. Here's one relevant compelling story:
Olivia Troye, who served as a homeland security and counter-terrorism adviser to former Vice President Mike Pence, says it was "a known thing" in the Trump White House that her colleagues were sometimes careless in handling sensitive documents.
"I found classified information in the ladies' room of the White House one time in the Eisenhower Executive Office Building," Troye said during an interview with MSNBC...Troye, who eventually left her job in the administration and has become a critic of the former president, said she immediately turned the materials over to security."I covered it up, I put it in a folder. It wasn't marked properly," she said Friday. "I was not expecting to walk into the ladies' room and find a document like that."
And of course Trump himself, who had argued for the execution of leaker Snowden, possibly unwittingly leaked classified data:
- "In May 2017, The Washington Post reported Mr Trump had reportedly revealed highly classified information about Isis provided to the US by an American ally, to the Russian foreign minister and ambassador in a White House meeting."
- "Mr Trump reportedly told former Philippines president Rodrigo Duterte that the US has “two nuclear submarines” off the coast of North Korea."
- "[C]onfidential details about the Manchester Arena attack appeared to have been leaked to the media by American intelligence officers."
- "In 2017, at a meeting with Russian president Vladimir Putin on the sidelines of the G20 summit, Mr Trump reportedly took away the notes of his own interpreter and instructed the linguist not to discuss what had transpired with other administration officials."
- "In August 2019, Mr Trump tweeted a high-resolution image of the site of a failed Iranian satellite launch that was taken by a US surveillance satellite,"
- "In 2019, a leaked document revealed the Trump administration had approved a series of secret agreements allowing US companies to explore selling nuclear power technology to Saudi Arabia."
I should note these aren't just simply an exercise of Trump's discretion of US-generated intelligence; some included shared confidential information from allies and/or private companies. Trump's indiscretions has undermined the good faith agreement underlying information sharing.
Self-serving excuses like Trump having declassified documents that were shipped (without bothering to have classification markings changed) or even that classified documents were "planted" by rogue federal agents (even less credible now we know Trump had surveillance cameras capturing FBI activity). [I wouldn't be surprised if the FBI monitored agent activity.]
I suspect the most likely explanation is that Trump did not enforce best practices on classified data security (like in the ladies' restroom incident mentioned above). We really don't know who did what during moving activities. I've heard Trump may have packed some boxes; you could have argued, but Trump hasn't, that he didn't do packing and doesn't know how classified documents ended up in moving boxes. Of course, one could then question where the movers vetted in the handling of classified and how could classified documents be accessed if they had been properly secured in the first place?
I think national security experts could resolve whether exposure of the data in the relevant documents pose serious or grave danger to national security.
Still, what does all this mean from a big picture perspective? The FBI search reveals 3 possible charges: 18 U.S.C. §§ 793, 2071 or 1519. The first is the Espionage Act ("which deals with the possession of documents and materials related to national security, particularly information that could be used to harm the U.S. or benefit a foreign country"); the second includes destruction, removal and concealment of federal property; and the last basically refers to the obstruction of a federal investigation.
The second is of particular interest to leftists because there ia a potential disqualification of Trump from future office on conviction. I'm not sure SCOTUS would uphold that; it's not cleat but theoretically possible that Trump could be disqualified under the 14th Amendment Section 3.
My post title hints at the fact the US government finally got Al Capone not on his organized crime activities but noncompliance with tax law. You have other simiar thngs like Martha Stewart convicted of perjury and other minor charges, not of insider trading.
The Gray Lady and others have pointed out the DOJ does not have to prove the documents in question are classified. The burden would be on DOJ to prove Trump's criminal intent, e.g., a quid pro quo for the information in question with some unauthorized party
I think it depends on the nature and extent of other evidence which AG Garland has acquired. I think it's a tough out (convicting Trump). I think you can argue that Trump was incompetent and/or negligent.
But I would be very careful of making Trump a martyr. One might settle that justice was served by retrieval of USG property and reform the Records Act to vest NARA oversight of term transition activities, tighten classified document handling at the White House.
