4 Reasons Trump Says a Judge Should Dismiss Charges in the Classified Documents Case
His lawyers assert presidential immunity and discretion, criticize an "unconstitutionally vague" statute, and question the special counsel's legal status.
In four motions filed late last week in the U.S. District Court for the Southern District of Florida, Donald Trump's lawyers seek dismissal of 40 felony charges based on his retention of classified documents after leaving the White House in January 2021. They argue that his decision to keep the documents is shielded by "absolute" presidential immunity for "official acts," that he had complete discretion to designate records as personal rather than presidential, and that the charges related to mishandling "national defense information" are based on an "unconstitutionally vague" statute. They also argue that Special Counsel Jack Smith, who obtained the indictment, was improperly appointed, making all of the charges invalid.
The motion based on presidential immunity, which seeks dismissal of the 32 counts alleging unlawful retention of specific classified documents, rehashes the argument that a D.C. Circuit panel unanimously rejected this month in the federal case based on Trump's attempts to remain in office after he lost the 2020 presidential election. "The D.C. Circuit's analysis is not persuasive," Trump's lawyers write, "and President Trump is pursuing further review of that erroneous decision, including en banc review if allowed, and review in the U.S. Supreme Court if necessary." They say U.S. District Judge Aileen M. Cannon, who is overseeing the documents case in Florida, "should not follow the D.C. Circuit's non-binding, poorly reasoned decision."
As Trump sees it, the separation of powers bars federal courts from sitting in judgment of a former president's "official acts," whether in the context of a civil case or in the context of a criminal prosecution. The D.C. Circuit, including Republican appointee Karen L. Henderson, was troubled by the implications of that position, which would allow presidents to commit grave crimes, including assassination of political opponents, without being held accountable unless they were impeached and removed from office based on the same conduct.
Trump's lawyers read the Supreme Court's 1803 decision in Marbury v. Madison as prohibiting judicial review of any presidential act. But as the D.C. Circuit emphasized, federal courts historically have passed judgment on the legality of presidential decisions, most famously in the 1952 case Youngstown Sheet & Tube Co. v. Sawyer. In that case, the appeals court noted, the Supreme Court "exercised its cognizance over Presidential action to dramatic effect" by holding that "President Harry Truman's executive order seizing control of most of the country's steel mills exceeded his constitutional and statutory authority and was therefore invalid."
Strictly speaking, however, Youngstown dealt with an order issued by the secretary of commerce rather than the president himself. "To be sure," Trump's lawyers say, federal courts "sometimes review the validity of the official acts of subordinate executive officials below the president, and such review may reflect indirectly on the lawfulness of the president's own acts or directives. But the authority of judicial review of the official acts of subordinate officers has never been held to extend to the official acts of the president himself."
Marbury drew a distinction between "discretionary" and "ministerial" acts. Regarding the first category, Chief Justice John Marshall said in the majority opinion, "the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience." In that situation, he said, "the subjects are political and the decision of the executive is conclusive," meaning it "can never be examinable by the courts."
But that is not true, Marshall added, "when the legislature proceeds to impose on [an executive official] other duties; when he is directed peremptorily to perform certain acts; when the rights of individuals are dependent on the performance of those acts." Then "he is so far the officer of the law, is amenable to the laws for his conduct, and cannot at his discretion, sport away the vested rights of others." In those circumstances, he is acting as a "ministerial officer compellable to do his duty, and if he refuses, is liable to indictment."
Although Trump's lawyers do not explicitly address that distinction, they argue that the counts charging him with illegally retaining 32 listed classified documents are based on 1) presidential decisions that 2) fell within the "discretionary" category. Both of those conclusions seem dubious.
The indictment says Trump "caused scores of boxes, many of which contained classified documents, to be transported" from the White House to Mar-a-Lago, his golf resort in Palm Beach. Trump's lawyers say the indictment "makes clear that this decision and the related transportation of records occurred while President Trump was still in office."
As Trump's lawyers see it, in other words, the first 32 counts are all based on actions that he took as president. That interpretation seems problematic based on the text of the statute and the wording of the indictment.
Trump is charged with violating 18 USC 793(e), which applies to someone who has "unauthorized possession" of "information relating to the national defense" and "willfully retains" it when he "has reason to believe" it "could be used to the injury of the United States or to the advantage of any foreign nation." The indictment says Trump "did willfully retain the documents and fail to deliver them to the officer and employee of the United States entitled to receive them."
Retaining the documents and failing to deliver them are distinct from the initial act of transportation. While the latter may have happened while Trump was still in office, the former included his conduct during the year and a half that elapsed from the end of his term until an FBI search of Mar-a-Lago discovered the 32 documents, along with 70 or so others marked as classified, on August 8, 2022. During that time, Trump returned some classified documents but kept others, even after he claimed to comply with a federal subpoena demanding them. But for that continuing resistance, the FBI would not have obtained a search warrant and Trump would not be facing these charges.
Why does Trump think the initial act of bringing the documents to Mar-a-Lago was within his discretion as president? Under the Presidential Records Act, he argues in another motion, he had complete authority to classify documents as personal, meaning he could keep them rather than turn them over to the National Archives. His possession of those documents therefore was not "unauthorized," as required for a conviction under Section 793(e). And since the FBI's investigation was not legally justified, Trump's lawyers say, the other eight counts, including conspiracy to obstruct justice, concealing records, and lying to federal investigators, also should be dismissed.
That reading of the Presidential Records Act is counterintuitive given its motivation and text. The impetus for the law was President Richard Nixon's assertion of the very authority that Trump is now claiming. Rather than allow a president to destroy or retain official documents at will, Congress declared that "the United States shall reserve and retain complete ownership, possession, and control of Presidential records."
The law defines presidential records as "documentary materials, or any reasonably segregable portion thereof, created or received by the President, the President's immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise or assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President." That term excludes "personal records," defined as "all documentary materials, or any reasonably segregable portion thereof, 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."
As Trump reads the Presidential Records Act, however, it "conferred unreviewable discretion on President Trump to designate the records at issue as personal." That interpretation would, on its face, render the statute a nullity. If a president has total discretion to decide that a document is "of a purely private or nonpublic character," regardless of its content, the situation that Congress sought to rectify would be unchanged in practice.
Trump also argues that Section 793(e), as applied to him, violates his Fifth Amendment right to due process because it is so vague that it does not "give people of common intelligence fair notice of what the law demands of them." In particular, his lawyers say, the phrases "unauthorized possession," "relating to the national defense," and "entitled to receive" have no clear meaning.
Finally, Trump says the indictment is invalid because "the Appointments Clause does not permit the Attorney General to appoint, without Senate confirmation, a private citizen and like-minded political ally to wield the prosecutorial power of the United States." Smith therefore "lacks the authority to prosecute this action."
The Appointments Clause empowers the president to "appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law." Because there is "no statute establishing the Office of Special Counsel," Trump's motion says, "Smith's appointment is invalid and any prosecutorial power he seeks to wield is ultra vires"—i.e., without legal authority.
This question, the motion says, is "an issue of first impression in the Eleventh Circuit," which includes Florida. But in 2019, the D.C. Circuit rejected the argument that Trump is deploying here, holding that Special Counsel Robert Mueller was an "inferior" rather than "principal" officer, meaning that Acting Attorney General Rod Rosenstein had the authority to appoint him.
Trump is asking Cannon to approve "discovery and pretrial hearings on factual disputes" relevant to his motions. That is apt to delay the trial in this case, which had been scheduled to begin on May 20.
The Section 793(e) charges require the government to show that the 32 documents listed in the indictment contained information that could compromise national security, a task complicated by their classified status. But the obstruction-related counts, which include allegations that Trump defied the federal subpoena, deliberately concealed classified records, and tried to cover up his cover-up by instructing his underlings to delete incriminating surveillance camera footage, may be the strongest charges that he faces across four criminal cases. Assuming the government can prove the facts it alleges in the indictment, it seems pretty clear that Trump is guilty of multiple felonies, including half a dozen that are punishable by up to 20 years in prison.
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Trump’s legal maneuvers showcase a complex battle over presidential authority, with his lawyers seeking dismissal of 40 felony charges related to classified documents. They argue for absolute presidential immunity, discretion in document classification, and challenge the constitutionality of the charges.
The case navigates intricate legal territory, invoking historical precedents and parsing statutes, promising a protracted legal saga with far-reaching implications.
I love it when the bots troll each other.
They aren’t treated as Classified Documents in the Complaint, because, as President, Trump had plenary authority to declassify what he wanted to. The prosecution sought to sidestep that issue by referring to them as National Defense documents, but then used the same statutes they use for misappropriated Classified Documents.
That Biden is not being indicted for far more egregious behavior in this regard (he had zero right to any of the classified docs he kept and he revealed them to others) is a huge, huge problem.
When Biden and Pence discovered they had classified material, they reported it and cooperated with authorities to track it down and return it. When Trump was discovered to have classified material, he doubled down, hiding it and lying about it. Also, it sounds like he took a lot more (acting deliberately) than Biden or Pence did.
I recall when Karl ‘Turd Blossom’ Rove popularized the concept of the Unitary Executive that was beyond Congress and the law.
Dubya was a mere piker compared to Genghis Con.
FFS, you call ME stupid? You’re a moronic pedophile idiot Marxist. Just fuck off. Like most subjects, you don’t really understand this at all.
You just hate Trump, but you love fucking little boys.
“Dubya was a mere piker”
Buttplug is a notorious neocon and Bushie.
I don’t think that’s what “unitary executive” means. It means that all executive authority lies with the president. And that’s what the constitution says.
turd, the ass-clown of the commentariat, lies; it’s all he ever does. turd is a kiddie diddler, and a pathological liar, entirely too stupid to remember which lies he posted even minutes ago, and also too stupid to understand we all know he’s a liar.
If anything he posts isn’t a lie, it’s totally accidental.
turd lies; it’s what he does. turd is a lying pile of lefty shit.
Maybe Trump should just lean over and blow a loud, lumpy fart and say he can’t remember, but means well?
Then ask for ice-cream.
The whole case is a stupid battle of egos. Law enforcement attracts people with inflated egos, and Trump’s ego could inflate a blimp.
He offended their egos by getting pissy and refusing to return stuff. They, expecting to be obeyed, are getting pissy in court. This one isn’t politics. It’s dick-waving.
It’s a civil matter anyway, not a crime. If it wasn’t this it, would be something else
Oh, wait………
I disagree this not civil this is theft. The Presidential documents below to the American people, not to the office holder. NARA is the representative of the people. I take something from you is it theft or civil? This trail should not even be happening because Trump should have just returned the papers when asked. NO one would have cared.
Biden took them too. That’s theft.
I have never heard that it’s not theft just because someone gave it back years later.
You’re missing the point. I’m not saying that what Trump did was bad and what Biden did was ok. Nobody is. The difference is that Trump defied law enforcement while Biden didn’t. As a result law enforcement is going after the guy who defied them. Doesn’t make it wrong or right. That’s just how it is. Cooperate and they’re what they would call nice. Don’t and they go out of their way to fuck you.
Biden kept documents for 40 years. Trump didn’t.
Biden disclosed classified information to his ghostwriter. Trump didnt.
Trump kept documents in a SCIFF locked and under SS protection, Biden in a garage and public office.
Trump was covered by the PRA and precedence, Biden was a senator.
The law says jack shit about giving documents back as a get out of jail free card. It is a meaningless distinction you choose to use in order to isolate the charges against Trump. Despite the latest report even giving examples of Bidens lawyers refusing access to certain areas and refusing to hand over documents prior to review by Bidens team.
Yes, and while “he did it too” is not normally a defense, it’s very clear how Biden’s crimes in this regard are objectively worse in every conceivable way from what has been publicly released. And yet, the prosecution is bringing 40 felonies against Trump and none against Biden.
sarcasmic paraphrased, “That’s (D)ifferent!”
As the article explains, this is not a “stealing” law. Anyhow, what you are missing is that no charges would have been brought if Trump had (1) returned the documents upon lawful demand, and (2) not lied about having done so when in fact he was hiding them, and continued hiding them until the FBI got a warrant. Biden, by contrast, turned over everything and cooperated fully. As a result he is NOT being charged. Get the difference?
The defense, as I understand it, is that they both broke the same laws. So why is Trump getting charged while Biden is not? Because he got all Cartman.
Show us the give back get out of jail clause in the law.
You pretend to be libertarian, but you sure do defend unequal treatment in regards to the same law.
I thought Mod called it theft.
If Biden would have said no and a warrant was needed. Do you think he would be charged with the same? Doubt it.
https://www.cnn.com/2023/01/25/politics/justice-department-biden-home-search/index.html
They would have got the warrant, made the search, taken the documents, and that’s probably the last Biden and Us would have heard about it.
Difficulty regarding your lawful demand. Judicial Watch v NARA gives wide discretion to the president, not NARA in a document demand. The PRA is a civil statute, not a criminal one. NARA acted in a different manner, for example Obama told NARA he had classified documents in a warehouse in Illinois, yet the DoJ never raided his residence. The entire pretext for the demand was a false one per reports.
NARA could have sued Obama for the documents, and the judiciary would ultimately decide if Obama had to turn over those documents.
It is beyond dispute that Obama had the authority to remove the documents in the first place.
” no charges would have been brought if Trump had (1) returned the documents upon lawful demand, and (2) not lied about having done so when in fact he was hiding them, and continued hiding them until the FBI got a warrant.”
Maybe. Is that some kind of documented policy that NARA and the FBI bound themselves with? Is no charges in exchange for cooperation something they offered Trump or his lawyers? Or are you just claiming without evidence that prosecutors would have used their discretion to not charge Trump if he’d been nicer to them?
Because it could be just the opposite: the prosecutors would’ve used his voluntary turning over of the documents as admission that he knew he had no right to keep them. Therefore, knowledge and intent. Things are ugly enough now that no one would be surprised if they took that second approach.
PS None of this is to defend Trump. Just that “hand over any weed you’ve got voluntarily and we’ll let you go” is an ancient and well-known lie.
“”PS None of this is to defend Trump. Just that “hand over any weed you’ve got voluntarily and we’ll let you go” is an ancient and well-known lie.””
NYC was notorious for asking you to pull your weed out then charging you with public display. Possession was decriminalized, they would use the public display angle to justify the arrest.
Biden is not being charged because he was found mentally unfit to stand trial!
“…Get the difference?”
Yep.
You’re a TDS-addled pile of shit willing to excuse anything droolin’ Joe does.
We ‘get the difference’.
The numerous and flimsy attempts at lawfare against Trump clearly show that Dems are throwing whatever they can at Trump hoping something sticks so they can remove him from the ballot. What evidence do you have to claim that had Trump just “returned the documents” they would have dropped it? More likely, they would have said, “See, he clearly had documents he shouldn’t have had, and this is the evidence–the documents he returned. He should just plead guilty now.”
You are assuming that the removed documents are Presidential Records, and not personal papers, AND that NARA is empowered to make that decision.
Are these documents unique? I can’t believe that there aren’t other copies archived somewhere.
Of course there are. These are copies. The original of a classified document is retained by the originating agency or department. It would be highly unusual for the President to ever see a classified original, unless it was created in the White House.
The argument is that Trump mishandled National Defense information. Not that he couldn’t view it – because he did at least have a DOE Q Clearance. But that the copy was mishandled – though not as badly as Biden storing his with his corvette in his garage in DE. At least, in Trump’s case, they were mostly under Secret Service control 24/7.
The comment I was responding to was arguing that Trump taking the documents was bad and should be considered stealing because they belong to the American people. Which is an odd argument in a number of ways. He’s not stealing anything if he keeps copies of stuff he has a right to view. And it seems difficult to claim that the papers belong to the American people when almost none of the American people are allowed to look at them.
NARA is the representative of the people.
NARA is an appointed bureaucracy.
The President is elected. The President is the representative of the people.
And that takes care of whatever point you thought you had.
And that’s really the point of the unitary executive idea. The president is the only one in the executive branch who is more or less directly accountable to the people. If he doesn’t have full executive authority, that means that unelected bureaucrats and appointees do.
“”Trump’s ego could inflate a blimp.””
Only if you put his name on the side.
touche
One side relies on law (PRA) and precedence (Judicial Watch vs NARA. The other side is targeted political violation to lock up a political opponent for over 100 years. Totes the same dummy.
Won’t even bother you with the demand you make to bow the knee to the state and ignore the unequal application of law. Due to your TDS.
https://www.lawfaremedia.org/article/the-presidential-records-act-clinton's-socks-and-trump's-boxes
The indictment does not allege any violation of the Presidential Records Act. Rather, it alleges that Trump violated (among other things) the Espionage Act.
And, quoting another source: The dispute in Judicial Watch concerned whether a third party has a civil mechanism to enforce alleged violations of the PRA or whether—as the government maintained—that responsibility rests solely with NARA and the Attorney General. Nothing in the Judicial Watch civil litigation presented the question of whether the PRA somehow exempts former Presidents from the obligation to comply with criminal laws, including laws prohibiting the unlawful retention of national defense information and obstruction of justice.
And here’s the indictment. to prove this.
https://www.justice.gov/storage/US-v-Trump-Nauta-De-Oliveira-23-80101.pdf
But sure, crap on about the PRA.
Say, Diet British Lawyer Shrike, what’s the reasoning behind the espionage charge? What did they say Trump did that warrants the espionage charge?
It’s like you think we’re all toddlers who you can trick into thinking the basis of the case disappears if you cover our eyes.
You are skipping the part where the MAL search warrant was based on the alleged NAR violations. If the search warrant was not validly justified, then everything discovered during it should arguably be suppressed as the fruit of the poisonous tree. That means every one of the documents cited in the indictments – since the only documents marked as classified that the prosecution knew about being in Trump’s possession before the MAL raid were in the binder of Russian Collusion documents formally ordered declassified Trump’s last full day in office. And the whereabouts of those documents remains a mystery – we just know that they weren’t in the indictments. All of the rest of the documents marked classified that are cited in the indictments were discovered as a result of the MAL raid.
Not relevant to the point of the indictment. Was Trump charged under PRA? Nope.
You seem to have missed my point – that if the documents were seized under an illegitimate search warrant, then they could be suppressed at trial as the forbidden fruit of a poisonous tree. And if the 30+ documents that Trump is charged with mishandling are suppressed at trial, then there would be no substantive charges remaining, and the process crimes he is charged with would also fail. So the relevancy of the PRA here is that it is a civil statute, with no enforcement mechanism. It wasn’t a crime for Trump to blow off the NARA request for the documents (presumably prompted by a request from the FBI, after NARA had been ordered by the Biden WH to cooperate fully with the FBI).
SRG misses many, many points; he’s not the sharpest knife in the drawer.
“”And the whereabouts of those documents remains a mystery – we just know that they weren’t in the indictments.””
In the public indictment anyway. Since they abused the FISA process with Trump before not sure why they wouldn’t do it now.
Although Trump’s lawyers do not explicitly address that distinction, they argue that the counts charging him with illegally retaining 32 listed classified documents are based on 1) presidential decisions that 2) fell within the “discretionary” category. Both of those conclusions seem dubious.
Uhm, the assignation and maintenance of classified records is NOT a Congressional mandate. That seemingly can only be a vested power of the executive. Congress can challenge those designations and seek to unseal, but the mere existence of having classified documents means there are some things Congress, which is the body public, does not get to review.
That is to say, if it is not the president’s decision who keeps which documents where and how, then whose decision is it? Because every power of every executive department is merely derived from the power of the presidency.
Sullum would have us believe that unelected bureaucrats at NARA have the final say. Even if the executive says otherwise.
The law gives the authority to manage Presidential records to those unelected bureaucrats. The executive doesn’t decide this the law, voted on by Congress and signed by the President. Presidents have vast authority but not unlimited authority. For example, the President of the United States cannot drive. Biden can’t say to the Secret Service I’m taking my Corvette out to the AW to get a root beer float. The Secret Service will drive him there but he doesn’t drive himself.
Hi parody. You really should read the holding of Judicial Watch v NARA.
Thanks.
The law gives the authority to manage Presidential records to those unelected bureaucrats.
It doesn’t, though. It gives that power to the executive for the purpose of creating that agency.
The FBI is just an agency created by the executive department. To my knowledge, there is no law permitting the President to create a Federal Bureau of Investigation. Biden could wake up tomorrow and announce he’s firing every single person who works for the FBI. He has nothing restricting him from doing this. Any President could have done this at any point. They exist as an arm of the Department of Justice, but they’re not required to exist.
The Presidential Records Act of 1978 was passed by Congress and Signed by President Jimmy Carter. That law establishes that the Presidential records are the property of the American people, and that NARA is to manage the records.
But – they don’t get to decide what is a personal paper, and what is a Presidential Record.
The definition of personal vs presidential is mostly set in regulation. The President cannot make that decision he could take a contested document to a court, as Clinton did. He can not override regulation without court. If the President could make the decision the Presidential Records Act of 1978 would be null.
I don’t think that you quite understand this. Federal regulations involve the Executive Branch interpreting federal statutes. Their legitimacy is derived from the President’s executive power, so don’t bind him.
You are claiming there is a law, voted on by Congress, that says Presidents’ can’t drive.
This is a rare case where demanding “Cite?” is justified.
It pretty common knowledge that Presidents are not allowed to drive themselves, just google it and you’ll get many sites. I am not saying there is a law about driving, but unelected bureaucrats in the Secret Service have the authority to make the rule that President don’t drive, for the President’s protection.
Secret Service have the authority to make the rule that President don’t drive, for the President’s protection
They actually don’t have that authority, it’s just an accepted practice. Presidents prefer not to fight it when they absolutely could. Executive Orders have more weight than Secret Service internal policy.
You need to understand that a lot of this happens due to a handshake agreement, where government tends to just go along for the sake of not having pointless fights.
Biden is certainly in no condition to drive.
I’ve always thought this was an Article II controversy. Given that Article II vests all executive power in the President, Trump’s argument that he can declassify documents at will is sound.
Yes, but you can’t claim to have declassified documents solely in your mind, without informing the relevant agencies WHAT has been declassified. We never heard a word about mental declassification until after the lie that they didn’t exist. Trump invariably takes multiple contradictory positions on every side of every challenge, hoping that something eventually will stick. That’s basically the definition of bad faith.
And his supporters will defend every position
And TDS-addled shits will lie about everything he does, TDS-addled shit.
“”Yes, but you can’t claim to have declassified documents solely in your mind,””
I agree. That’s not going to be a winning argument.
Imagine a scenario if a former president Bernie Sanders tried that excuse.
But here, Trump took a specific action – he ordered several hundred boxes of documents shipped to his home in FL. Yes, he didn’t know which boxes held documents marked as classified, because he really didn’t know what was in each box. They were mostly the contents of his desk when it was cleared after a meeting or phone call, so he would be prepared for the next one. But if asked if he intended to declassify any classified documents in those boxes in that order to ship the boxes home, he likely would have responded something akin to “Duh?”
He absolutely can. Forget which case it was but an example of a President choosing to declassify information and share it in a meeting was exactly one of the arguments discussed by the Supreme Court. The power solely rests in the office of the president.
Is the defense citing that case?
Believe it is mentioned in one of the briefs. The case formulated the sole discretion aspect of the classification being under the president.
Pretty sure that it was JFK during the Cuban Missile Crisis. Kennedy showed pictures of the missile sites in Cuba. At the time the pictures were classified because they showed the capabilities of the cameras used for reconnaissance.
Like it or not, this is going to come down to a ruling by the USSC on the limits of Presidential powers. Once there’s a ruling, the charges against Trump are going to go away. This will also cover Obama. Joe’s on his own.
I believe that was Navy v. Egan. I was going to post something similar, as it is a clear decision that the President can mentally declassify, without having the declassification approved by some bureaucracy.
“Yes, but you can’t claim to have declassified documents solely in your mind”
That’s essentially what Bill Clinton did according to the Judicial Watch v. NARA ruling. This argument didn’t pop up out of thin air.
The judge ruled that by the very act of recording and then taking the tapes with him, Clinton declassified the information on them.
Why is that, that the President must notify his employees of his decisions on what he declassifies?
Yes, but you can’t claim to have declassified documents solely in your mind, without informing the relevant agencies WHAT has been declassified.
YOU can’t. But the President CAN.
The processes that exist for declassification are for offices beneath that of President.
So, if say, a senator or vice president or secretary of state takes classified documents, he or she cannot declassify them without using the procedures –whose final authorization is, you guessed it, the president.
>>The D.C. Circuit, including Republican appointee Karen L. Henderson, was troubled by the implications of that position
this sentence does not require the Republican appointee part.
But it’s not uniparty consensus if he doesn’t.
>>documents listed in the indictment contained information that could compromise national security
contained information compromising individuals abusing national security …
documents listed in the indictment contained information that could compromise national security
And which has fuck all to do with what powers the President has under Article II. It’s all red herring bullshit.
^^
Keep in mind that, prior to the MAL raid, the only documents marked as classified that the FBI knew that Trump had, were in the binder of Russia Collusion, etc documents that he formally ordered declassified his last full day in office. They implicated two organizations in particular, in perfidy, malfeasance, and misfeasance, they were the result of two Special Counsel and a DOJ IG investigations. They implicated two organizations: the DOJ’s Counterintelligence and Export Control Branch (CECB) and the FBI’s Counterintelligence Division (CD). Coincidentally, the MAL raid was executed by these two very same organizations. The search warrant was signed by CECB branch chief Jay Bratt (who also signed the original indictment). And the search was overseen by FBI CD agents from DC HQ (since they had the security clearances and knew what they were looking for). Bratt was, at some point, also named Jack Smith’s Deputy Special Counsel (while apparently remaining chief of the CECB). Also, maybe coincidentally, the binder of documents formally ordered declassified by Trump was never mentioned, nor did it apparently show up in the FBI’s inventory of documents seized during their MAL raid. Was that why the FBI refused to let Trump’s attorneys observe their raid of MAL?
You’re not supposed to talk about that.
the implications of that position, which would allow presidents to commit grave crimes, including assassination of political opponents, without being held accountable
That makes some sense if you stick an ice pick in your eye socket and gouge out enough chunks of your brain to believe that political assassinations could ever be considered “official acts” by the president.
Yeah, the gravamen of Smith’s prosecution is that Trump illegally retained classified documents. The issue is a narrow one – whether Article II vests the President with the power to unilaterally declassify documents. The “assassination of political opponents” bit is just an attempt to politicize what should be a fairly straightforward legal decision.
That’s really not an issue. He can. The prosecution is trying to sidestep that by claiming that he retained National Defense information. Same Espionage Act violation, of course.
The sophistry is just staggering.
Everyone knows that taking a few work files home is a gateway drug to hiring hitmen.
You know, I once helped a coworker load work documents into her car, and the next thing I knew, I was a hitman.
Well Presidents are apparently allowed to spy on political opposition (Obama), imprison their opposition (Biden), and drone strike American citizens and a family getting water (Obama and Biden).
“” The indictment says Trump “did willfully retain the documents and fail to deliver them to the officer and employee of the United States entitled to receive them.””‘
I see two different issues here.
1. The retention of the documents.
2. Failure to deliver.
If # 1 is illegal, then Biden should be charged. Period. He did in fact retain.
If #1 is legal then # 2 is not a crime. Just an administrative issue and the charges are overblown.
And there is no reason, besides smoke and mirrors, to believe that Trump couldn’t retain any copies of any declassified documents he wanted to. That little bit is skipped over by the prosecution. He never had the originals – just copies. And the prosecution doesn’t ever really explain why he shouldn’t have had them. It comes down to either the bureaucrats believed he shouldn’t. Or the Biden Administration made that decision.
.
And, assuming for the sake of argument, that Trump is right, it would not be the first time Congress drafted a law in such a way as to make the problem that they claimed to be trying to fix worse.
It ought not be the job of the courts to fix such errors.
Judicial Watch vs NARA.
“Amy Berman Jackson, the judge presiding on that case, said a couple of very important things,” said Farrell. “That the president had an absolute, unreviewable right to take any records or documents that he wants when he leaves office. “
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“No one can come back and second guess or double think or ask questions about what the president elects to take with him,” Farrell continued.
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In her ruling, Jackson wrote that “the President enjoys unconstrained authority to make decisions regarding the disposal of documents: ‘[a]lthough the President must notify the Archivist before disposing of records . . . neither the Archivist nor Congress has the authority to veto the President’s disposal decision.’”
This is the current holding of the PRA.
https://www.judicialwatch.org/judicial-watch-clinton-sock-drawer-audio-tape-case-exonerates-pres-trump/
Quit acting like we’re talking about a real case and not a political soviet show trial. The existing precident is irrelevant. There is nothing they won’t pervert and hacks like Sullum won’t defend if it’s between them and power.
It’s not the courts job to fix legislation. That job belongs to the Legislative Branch.
Let me clarify that. I read an article a day or two ago, about why Con law profs loved teaching the subject during the Warren Court era, and later, and don’t anymore, under the Roberts Court. The Warren Court legislated from the bench, solving, in their minds, many of society’s problems that the Legislative Branch couldn’t, or wouldn’t. The Roberts Court is taking the opposite, much more literal, view. I believe that it was Roberts who said that their job is not to fix legislation. That is the job of Congress. Their job is to interpret it, as written.
See: https://reason.com/volokh/2024/02/26/remembering-the-proper-role-of-the-supreme-court-as-taught-at-harvard-in-the-1990s/
“including assassination of political opponents”
Isn’t that what Obama did when he killed al-Awlaki?
No.
Why not?
Al Awlaki was a terrorist, not merely a political opponent,
Says Obama?
And the Republican leader of the House Armed Services Committee at the time.
https://armedservices.house.gov/news/press-releases/mckeon-statement-death-anwar-al-awlaki-death
You lot are such hypocrites.
Hypocrites?
Say Diet Shrike, tell us again about Qasem Soleimani.
Also isn’t McKeon the arch-neocon who said this?
Rep. McKeon would support tax hike to stave off more Pentagon cuts
Imagine him backing the al-Awlaki assassination… Remarkable.
He was still an American citizen killed without trial or due process of law at the whim of the president. Oh, and what about his son who Obama also killed.
The point of all these motions is simply to give Cannon an excuse to delay the trial. They don’t have to be sound or to make sense.
I very much disagree. Rather, I think that they are opportunities for her to dismiss the case. I don’t think that she has any love for the prosecution team. They have repeatedly pushed the envelope ethically and legally. They were preventing defense counsel from seeing the documents involved, while slow walking the attorneys’ security clearances. She essentially told the prosecution that Brady meant the defense could see everything, so make the security clearances happen. The Special Counsel was running a second grand jury, in DC, outside the supervision of her district (SD FL). Jay Bratt, who signed the search warrant and initial indictment, had demanded that Trump turn over all documents marked as Classified in his (constructive) possession, then refused their requests for an extension of time or for rolling document production (and ignored their requests for security clearances for the attorneys). A search that required carefully going through several hundred boxes of documents, where the ratio of documents marked classified to boxes was roughly maybe 7-1. All requiring security clearances, with no extensions of time. Then the prosecution tried to force two federal trials on Trump in the same month, that coincidentally coincided with Super Tuesday.
“”The motion based on presidential immunity, which seeks dismissal of the 32 counts alleging unlawful retention of specific classified documents, rehashes the argument that a D.C. Circuit panel unanimously rejected this month in the federal case based on Trump’s attempts to remain in office after he lost the 2020 presidential election. “”
I don’t think it’s a rehash. Document movement at the end of a presidency may be an official act. Trying to stay in office is not. The president has immunity for official acts, not unofficial acts.
Because it’s clearly political persecution of an active presidential candidate?
Because apparently all the previous presidents also took classified documents home, and were not prosecuted for technically violating the law against doing so?
Because it clearly posed no danger to national security?
As some of you insist on claiming that Trump is being charged under the PRA (44 USC 22), here is the indictment:
https://www.justice.gov/storage/US-v-Trump-Nauta-De-Oliveira-23-80101.pdf
You will notice that none of the charges are under the PRA, and further, that some of the charges – counts 33 and onward – are not anything which Biden et al were alleged to have done.
The claim is that Archives requested documents marked as classified be returned. This was the predicate for the search warrant. The first problem there is that the PRA is not a criminal statute. It is purely civil. It has no criminal sanctions. Thus, according to Trump’s lawyers, the search warrant was invalid, and anything discovered from it would be fruit from the poisonous tree. At best, they could have issued a subpoena.
The prosecution has, of course, assumed that the copies of the documents marked as classified don’t belong to Trump, and that they have a right to them. Note though, they sidestep by calling them national defense documents, instead of classified documents (esp since the documents marked as classified that they knew he had, before the MAL raid, were in the binder of Russian Collusion documents that Trump ordered declassified before leaving office that implicated the DOJ branch and FBI Division that conducted the raid in misfeasance and malfeasance). Why does the US government have a possessory interest in those copies of documents marked as classified? That is not addressed, and the (supposed) Special Prosecutor has tried his hardest to keep them away from the defendants.
“not anything which Biden et al were alleged to have done”
Imagine that.
Also, did you even read thirty-three onward?
“33. In May 2021, TRUMP caused some of his boxes to be brought to his summer residence at The Bedminster Club. Like The Mar-a-Lago Club, after TRUMP’s presidency, The Bedminster Club was not an authorized location for the storage, possession, review, display, or discussion of classified documents.
Biden had classified documents from 40 years ago when he was just a senator. They moved multiple times and were stashed in sheds and attics at various properties before ending up in his garage.
And unlike Trump he wasn’t president with the power to declassify when he did.
This just shows what a political hit job this fascist prosecutor is engaged in. If you weren’t a shill you’d be dying of shame for covering for this bullshit right now.
What you fail to mention, because it would undermine your point, is that this was but one item in a list of activities that taken together support charge #33.
i.e.,
“Here are the 7 points which together lead to charge #33”
“But one of them is something Biden did!”
“Yeah, and the others?”
#33 is a conspiracy charge, and otherwise legal conduct can be evidence of conspiracy when taken together with other evidence.
I note, though, that you don’t disagree with the more important point, namely that the indictment doesn’t concern itself with the PRA/
As others have REPEATEDLY explained to you the predicate for the charges is the illegal search warrant obtained by NARA via the PRA.
Got it now ?
And the defects in the search warrant presumably justify suppression of the 32 documents as forbidden fruits of the poisonous tree.
Wrong.
You make a great argument. So great, that you’ve changed my mind–at least until the next guy says, “Wrong,” and I’ll have to change my mind again.
See my later post here
https://reason.com/2024/02/26/4-reasons-trump-says-a-judge-should-dismiss-charges-in-the-classified-documents-case/?comments=true#comment-10464741
Now that should change your mind.
Wrong.
Still didn’t see Solum address the claims in Trump’s first motion – that Smith has no legal authority to indict and try the case, and that the prosecution was illegally funded.
Special Counsels are typically, and are supposed to be, US Attorneys, who have been nominated by a President and confirmed by the Senate. Hur is a USA. All of the Special Counsels during the Trump Administration were, with the exception of Mueller. And now, Smith. As Senate confirmed USAs, they are Principal Officers under our Constitution, and have the power to indict and try cases. Smith is, if anything, a mere employee of the DOJ, personally hired by AG Garland. Where does his power to indict and try cases come from? It doesn’t come from being a Senate confirmed Principal Officer, since he isn’t one. But it also doesn’t come from the statutes that set out the various DOJ officers and their duties, nor from DOJ regulations (and arguably statutory authority would be required). I see two, and only two problematic ways to save the prosecution from being excluded from the case as being illegal and ultra vires. The first, possibly, is that as a direct report to AG Garland, Smith can utilize the AGs power as a Principal Officer to prosecute the case. And second, is if full control is given over to Smith’s Deputy Special Counsels, Jay Bratt, who has run most of the case anyway. He has a second hat, as the branch chief of the Counterintelligence and Export Control Branch (CECB), which puts him under the AAG for the National Security Division, which is a Senate confirmed post. But that opens up the question of what happened to the binder of documents that Trump formally ordered declassified his last full day in office, that implicates his branch, as well as the FBI’s Counterintelligence Division (CD) in the Russian Collusion perfidy, misfeasance, and malfeasance, as evidenced by the work of two (real) special counsels, as well as the DOJ IG.
Which brings us to the funding aspect. Smith’s prosecutions are apparently being funded off the budget via a special fund for independent counsels/prosecutors. Except that Smith, not being a Senate confirmed Principal Officer, is not the least bit independent, so the costs of the prosecutions should be funded under the DOJ budget. This last should be keeping him up at night, waiting for the first Qui Tam suit for disgorgement of his ill gotten gains.
It should be interesting. My prediction (not having yet seen Smith’s response) is that Judge Collins dismisses the FL case, or at least the substantive charges, based on these grounds, in order to bypass the much more complex issues concerning the limits of Executive Power, etc. We shall see.
The normal rules and guidelines do not apply to Trump. It’s bend all rules until he is destroyed. They will go after the judge if she doesn’t play along. The media already has. Any ruling that supports the defendant (Trump) is meet with cries to have her disbarred. The media acts like the prosecutor rules the court.
Anyone who cannot see the obvious that these never-ending indictments against Trump are just a Nazi Witch-hunt is playing Nazi-fan-clubing partisan politics.
Either be honest and say all Presidents deserve a life-long prison sentence over spilled milk or deal with things like “Qualified Immunity” to deter the Witch-hunting abuse of a justice system.
Actually, they probably won’t. Why? Because these lawsuits were designed to interfere with the 2024 election. All of the criminal trials were supposed to have been run about the same time – essentially against Super Tuesday. Imagine Jack Smith arguing that he absolutely needed both of his trials to start next month. Yet, that’s exactly what happened. Meanwhile, GA DA Fani Willis is trying to bring her case against Trump to trial at the same time.
Yep, their sense of urgency has nothing to do with justice.
There is a clear double standard. Either both Biden and Trump are charged or neither are charged.
Instead we have a sitting president who has disregarded the law by holding restricted documents out side of an official viewing room which is the only location he was legally permitted to view documents when he was a senator or vice president. This is over decades not the a few months that Trump who was president.
I have no issue charging Trump as long as there isn’t a double standard. Trump is charged over documents from when he was the chief executive of the executive branch. Even if Trump is claiming more rights and executive privileges that what he had or should have, Biden has no valid claim as he was either a senator or vice president and absolutely didn’t have rights to hold the documents.
Biden was not charged because of prosecutorial discretion claiming that he is too senile but well meaning. If Biden is too senile to be charged then the special council should have recommended removal of Biden as the president. If Biden is not too senile to be president then he should be charged and failure to do so while charging Trump does not sit well and does not pass the stink test.
So this is one example, so can this double standard simply be a consequence? Just go back to the failure to charge Hilary Clinton and the fact that she was not charged. Now consider that Robert Menendez is still a senator, but numerous Trump associates have been charged and quite often in novel usages of seldom utilized crimes.
A pattern emerges that can’t be ignored. We live in an authoritarian state where the ruling class goes after their political opponents. It is strikingly similar to the corporate media’s depiction of Russia, China and dictatorial regimes. I have no doubt that Russia, China and dictatorial regimes engage in this kind of behavior.
I simply realize that our ruling class is no different. The democrat party is saving our “democracy”, by utterly destroying it.
There’s a problem with that. To fully resolve this it is going to take the US Supreme Court to make a ruling on the extent of Presidential powers. No matter which way they rule, that let’s Trump off the hook. If they rule that he doesn’t have the authority, he can claim that at the time he believed that he did. Technically until the USSC rules, there’s no crime.
Biden on the other hand, took his documents while he was a Senator. The USSC ruling does not cover him.
Compare how the DOJ treated Hillary. They swallowed the BS argument that Cheryl Mills, employed by the State Dept, was somehow Hillary’s lawyer.
The Deep State is worried that Trump has these documents, https://public.substack.com/p/us-government-is-hiding-documents will choose to release them, and they destroy the government’s last imaginary shreds of legitimacy. That’s why they raided Mar A Lago. The rest is political interference/aka our ongoing descent into banana republic status. The Blob is trying to protect itself, and Trump is a threat to their most overt lies.
Let us be charitable and assume that all of you who claim that the predicate offence for the warrant to search Mar-a-Lago fell under PRA – Bruce Hayden, Jaydog, et al. – were simply ignorant, and were not lying. Why were you all too lazy to look at the search warrant itself? Or did you not care, and were just either pulling crap out of your arses or believed someone else’s crap?
Here’s the search warrant. And you will see that the grounds stated are violations of 18 USC not 44 USC.
That completely, utterly and irrevocably wrecks your argument.
https://www.justice.gov/d9/2023-09/08.31.23.%20–%20Mar-a-Lago%20Search%20Warrant%20-%20Interim.pdf
Yes, the NARA referred the original matter to the FBI for investigation. But once the FBI investigated, they found probable cause under 18 USC. and so the warrant was not remotely defective:
Based upon the following facts, there is probable cause to believe that the locations to be searched at the PREMISES contain evidence, contraband, fruits of crime, or other items illegally possessed in violation of 18 U.S.C. §§ 793(e), 1519, or 2071.
“Yes, the NARA referred the original matter to the FBI for investigation. But once the FBI investigated, they found probable cause under 18 USC. and so the warrant was not remotely defective:
Based upon the following facts, there is probable cause to believe that the locations to be searched at the PREMISES contain evidence, contraband, fruits of crime, or other items illegally possessed in violation of 18 U.S.C. §§ 793(e), 1519, or 2071.”
Nope. No probable cause, because they had reason to believe that the documents had been declassified, and were legally and legitimately in the constructive possession of Trump.
Affidavit was totally conclusory, claiming that Trump had classified documents, essentially ignoring his claims (that they knew had been asserted) that the documents had been declassified, and that he owned them. So, yes, the affidavit contains lies. Every time the party making the affidavit claimed that Trump had classified documents, or was storing them illegally, etc, he was lying. If Trump declassified them by ordering them to be shipped to MAL, then there was nothing wrong with how they were stored. The DOJ attorneys involved surely knew this, and glossed over this by just assuming that documents marked as classified were indeed still classified, despite knowing that the President had plenary declassification authority. You see this throughout the affidavit – the assumption that documents marked as classified are indeed still classified. That’s normally a valid assumption, but ceases to be so, when the alleged wrongdoer had plenary declassification authority at the time the events transpired. There as, indeed, no probable cause that a crime had been committed, for just those reasons.
Nope. No probable cause, because they had reason to believe that the documents had been declassified
Ah, so now we’re into, “it was deficient because I said so”. And funnily enough, you’re the one drawing conclusions – that because Trump said it was so, it was so. I give you credit for having plenty of words in your response.
But what a great defence. “Your honor [sic]. my client claims that as what he did wasn’t a crime, the warrant lacks probable cause and so the search that turned up evidence of a crime must be thrown out.”