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Trump documents case is unique

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.

About The Author

Larry Horist

So,there‘tis… The opinions, perspectives and analyses of Larry Horist Larry Horist is a businessman, conservative writer and political strategist with an extensive background in economics and public policy. Clients of his consulting firm have included such conservative icons as Steve Forbes and Milton Friedman. He has served as a consultant to the Nixon White House and travelled the country as a spokesman for President Reagan’s economic reforms. He has testified as an expert witness before numerous legislative bodies, including the U. S. Congress. Horist has lectured and taught courses at numerous colleges and universities, including Harvard, Northwestern, DePaul universities, Hope College and his alma mater, Knox College. He has been a guest on hundreds of public affairs talk shows, and hosted his own program, “Chicago In Sight,” on WIND radio. Horist was a one-time candidate for mayor of Chicago and served as Executive Director of the City Club of Chicago, where he led a successful two-year campaign to save the historic Chicago Theatre from the wrecking ball. An award-winning debater, his insightful and sometimes controversial commentaries appear frequently on the editorial pages of newspapers across the nation. He is praised by readers for his style, substance and sense of humor. According to one reader, Horist is the “new Charles Krauthammer.” He is actively semi-retired in Boca Raton, Florida where he devotes his time to writing. So, there ‘tis is Horist’s signature sign off.

3 Comments

  1. Mike

    Larry, While I agree with some of what you say (I doubt that there will be an inditement), I think you are overlooking the actual horror of this situation. What we have here is a very ignorant person (dare I say low IQ) who was somehow elected president (he does know how to appeal to a significant number of people, but never a majority). And this person does have the ability to declassify almost anything he wants (not everything, and there is certainly a process involved in declassification, but I really don’t want to argue this as that is not the point I am making). However, this person who was formerly president, does not have the skill set required to know if release of a particular document would represent damage to the US, or our allies. There are numerous instances where he blabbed details without knowing the consequences, in order to score points with his Russian buddies. Having worked in government and having held very high clearance, I will go on record to say there is not a single TS/SCI document that should be downgraded to unclassified without significant review. It is highly unlikely that these documents were reviewed, and it is also unlikely that they were declassified (have any of his attorneys stated in their court filings that these are unclassified? No, because they can be charged for making false statements in court, while Trump can lie with impunity in the public domain…) So, there tis, the government needs these documents back because they represent a risk to the free world when they are essentially unprotected in the custody of an idiot…

  2. frank stetson

    Larry, I enjoyed this nice op ed; looks like a lot of effort, much better than the normal “fair” around here (to quote Joe Malaprop). I am glad you didn’t put me in the “some readers” cult-calling list but sad that you feel so picked upon and defensive about your readers judging you without knowing the real you. Then again, maybe it’s your ideas they are reacting to and the unique way you have to represent them. My old editor used to say: :if that’s what they think, that’s what you wrote.” All I can say is poor, poor Larry. You got a small handful of liberals coming at you, maybe an odd maga-t here n there, and you are crying us a river. Try being jumped by the semi-fascist hit squad here numbering in the hundreds. And that’s just the Ben’s. Type a mile on that keyboard…..

    All joking aside, and I was joking, I generally say you are spot on with this one, beyond the tears, with a few additions for the things left out. You seem to be preoccupied with the talking heads and not the FBI/DOJ. The most important part missed is, according to affidavit and search order for this Trumpian travesty, there are two possible types of charges:

    1. What is criminal and can be proved so
    2. What is wrong and you know so.

    The first is in the court of law as in DOJ/FBI, the second is in the public arena as in you and I. You cling to the first as your “as long as it’s legal” Republican mantra, and mostly avoid the second. What’s an op ed for anyway?

    I agree that, legally, the classified document part is probably a red herring given your points which I resonate to. But that does not make it right and the Trumpian wrong-ness stinks holy hell to high heaven. On so many levels. This shit can not take our most secret classified info, wave his magic gold wand, and then say anyone can see it; let’s go and store it next to the pool. Then he doesn’t tell anyone what he has, what he did with it, and lies to anyone who asks. That’s just not proper, that’s just not right. And so, Larry the Republican says let’s REGULATE the hell out of it because that’s the only right and wrong Republicans know — can you get away with it, legally. Just because you can get away with it legally does not make it right. We can’t regulate every human decision and choice; that’s political correctness to the nth degree.

    On your second point, you feel he is guilty, it is a crime, and the penalty, if indicted, will be minimal, non-invasive even. I agree. Plus, untested law at the Presidential level which makes prosecuting it burdensome. I do feel Garland will indict because it’s 11,000 documents, not just a few in a desk drawer. And they don’t even make sense to be together – it’s a Hodge Podge of crap seemingly grabbed in a frenzy, like tossing burgers at the wall for no reason. It just may not matter if Garland indites since perhaps so insignificant a penalty that Trump would not even appear. Given we got all the stuff back, which we really don’t even know with this guy. But it sends a message, some prosecutors love new laws, going where angels fear to tread, and IMO, he has to go for it. Just won’t matter much, penalty wise.

    That’s your main points which seemed like a response to cable news. Because, wait — there’s more. You seem to have left off the reasons stated in the search warrant and affidavit. These would be on top of the declassification and PRA issue that you noted:

    1. concealment of national defense information
    2. giving that information to those not legally entitled to possess it
    3. obstruction of justice charge by failing to return that information.

    Specifically, 18 U.S.C. § 793, 18 U.S.C. § 1519, 18 U.S.C. § 2071 as noted in the affidavit and/or search warrant.

    In plain speak, that Trump concealed NDI, allowed others to see it, and then lied to the government about having said information. I think the indictment for these will depend on the nature of the information marked classified, does not matter what the classification is now, and none of these criminal acts care about declassification; they hinge on the relevance of the NDI and who Trump showed it to. And it does not have to be a spy, it can be anyone. And we will probably never know, except as a generalization, what that means. For example, he might magically “declassify” our secret knowledge of Russia’s nuclear defense, but he can’t magically erase the NDI importance of said info. No matter what he thinks he declassified, that shit ain’t seeing any more light of day than he let it. It’s going back into the vault. And we will never know specifically that’s what he did. It will be “re-classified” for obvious reasons. So, IMO, if this stuff it super top over the top secret —– he’s indictment toast under the espionage act and that’s a terrible place to be.

    You also didn’t mention timing — nothing till after the midterms, and probably until next year — at least according to the expert pundits, basing it on both election “rules” that we are 2 weeks from the 4th quarter.

    Again nice piece, just wish you would have given your opinions on the things DOJ/FBI said in the search documentation. I would love to get your take on the three points. That’s seems more relevant to possible criminal acts than the talking heads on FOX and MSNBC.

  3. ben is back

    Whatsa matta? court got your tongues?

    Seems like a cannon has fired at Cannon after two Trump judges and an Obama judge said: “bullshit on you” as they freed the DOJ to continue the investigation on the classified documents. That’s right spanky, the court says they are classified because Don and company haven’t proved they are not meaning in the court’s eyes, Don can’t prove they are declassified. They were also recently asked by the special master to prove it and they demurred mumbling something about tipping that hand would ruin their defense. To which they got a “can’t have your cake and eat it too” comment from the judge.

    So between the special master and the appeals judgement, Trump’s ability to stop the process for the classified materials or slow it via the special master review is now moot. The investigation goes ahead, full steam….. But wait, there’s more reason for you to be mum on the topic……

    Speaking of investigations, Don and his three oldest grifter kids are sued in a civil suit in NY over fraud and other illegal acts. They didn’t even need a laptop from a blind Biden-zealot computer story owner. NY is looking for $250M, cease operations, a business special oversight monitor, and a business ban in NY for five years including getting loans, serving on company boards, or real estate transactions. They also did criminal referrals to the IRS and the Fed (SDNY) which is probably a nothing burger given both organizations have already been investigating and if SDNY was going to roll they probably would have already rolled on “citizen number 1” noted in the previous Michal Cohen indictment.

    That still leaves 1/6, the PRA, and GA —– one down, three to go.

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