Trump documents case is unique
There is a need for a disclaimer since some readers take the view that unless you condemn President Trump on every issue in every way, you are a MAGA cultist (their term). They generally misrepresent my opinions by creating a straw man Larry Horist as their counterpoint. Any time a person tries to be factual and objective, one side or the other goes on the attack. Soooo. Allow me to reiterate my position on this one issue – the government records stored at Mar-a-Lago. And there are two distinct issues even though the constant Trump/Republican/conservative critics tend to merge the issues.
Classified documents – Is they is, or is they ain’t
On the question of possessing documents that are or were classified, the jury (actually the Supreme Court) is out on this matter. Trump says he has declassified all the documents in his possession. There is no doubt that he has the constitutional power to do so.
Critics say that there is no evidence – no compliance to an official process – to establish what he has or has not declassified. They are correct – but not in the way they think. There IS no official process prescribed in the Constitution by which a President may exercise the power over classification. There is no “way” by which it must be done. There is no requirement that a President must inform anyone of his actions.
Trump says he did declassify them. He even suggests that the act of removing them from the White House was an automatic declassification.
Procedurally, none of that sounds right. I think most folks would agree that that is NOT how it should work. But that does not mean that it IS how it works. There is nothing to establish that Trump’s opinion is wrong. It is a grey area – constitutionally unclarified. That is why I recommended a constitutional amendment to correct the situation. Short of that, the Supreme Court would have to at least “interpret” the meaning of the Constitution in this regard.
There is a nuance, however. (Isn’t there always?) Records do not have to be classified to be illegally misused. If government information is provided to an enemy to the detriment of the United States, it is still a prosecutorial crime – whether the information is classified or not. There is no indication that Trump would do such a thing despite the irrational speculation of the more extreme Trump-haters. Too much grey area.
All this means is that the issues of the classification of the documents taken to Mar-a-Lago pose no serious threat to Trump. Just a needed reform of the procedure to resolve the debate over the presidential power and declassification procedure.
Possession of the documents – is they his, or is they ain’t
Setting aside the classification issue, did Trump have a right to remove all those boxes of documents from the White House and bring them to his residence at Mar-a-Lago? That is a lot easier to answer. No! The 1978 Presidential Records Act is as clear as anything ever gets in government and law. All those documents are the property of the state – the people. They do not belong to Trump … period.
Lawyers, judges and constitutional scholars on all sides of the political divide seem to agree on that point. Only Trump has claimed that the documents are his. Even his own lawyers dealing with the controversies are not proffering his argument of ownership – or control. They have not made that case publicly or in any court filings. They do plead that perhaps some documents are protected by client privilege or Executive Privilege – or are clearly personal items. Those few cases will be determined by the so-called “Master” if the Justice Department’s appeal of the appointment fails.
From the very onset, I have expressed my own curiosity as to why Trump would have taken all those documents – and resisted returning them to the National Archives. Why would he have spent months resisting and deceiving the DOJ? I cannot even speculate a good answer.
If you read the 1978 Act, it is difficult to see how Trump did not beak the law. Although the left-wing media pumps it up as if it is the worst crime against America since Pearl Harbor, it actually is not among the more serious crimes. It has been worsened somewhat by the long refusal to return the documents – but still a major deal.
Where does it end?
The current question is what Attorney General Merritt Garland will do about it. Will he indict Trump and put him on trial? Probably not. Even many of those Trump-hating former prosecutors seen on television predict that there will be no indictment in this case. The documents will eventually be returned and that will be the end of the issue.
Why no indictment? Let me use the same reason as the Trump critics. The “crime” is not serious enough to put a former President of the United States on trial and potentially in jail. The DOJ could look at it as a civil crime and request the courts impose a fine. And probably not even that.
There is one other point. Prosecutors do not like to lose cases in court. If it is unusually burdensome to criminally indict a former President, imagine how difficult it would be to convince 12 jurors to put a President behind bars. That is also going to be a consideration in anything that comes out of the January 6th investigation – or any of the others.
Those who believe – or hope – that Trump is one short putt away from the hoosegow may be in for a major disappointment. There is a huge difference between convicting in the court-of-public-opinion and in a court-of-law.
So, there ’tis.