It's An Indictment Mardi Gras

Well. Where to start with this week's events? I think it might help to explain some things that have been obscured in the multi-network spin room that is Sunday morning.

Of course, we are all no doubt aware of the 37-count indictment brought by Special Counsel Jack Smith against Donald Trump. And some questions have been raised, mostly by those insisting that storing top secrets next to the toilet is somehow normal. So let's try to answer them.

WHY DID THE FORMER PRESIDENT TAKE GOVERNMENT DOCUMENTS TO HIS FLORIDA SWANKIENDA IN THE FIRST PLACE?

I can't explain that any more than I can explain that hairdo or the makeup. Judging by the recording of him talking about, and showing, a speculative plan of attack on Iran to a writer, and declaring it was still classified, you could reasonably suspect they are something to brag about in the club bar. There are also documents on US nuclear capabilities and those of potential adversaries, and US vulnerabilities as well. What in the world would anyone need that for? We could speculate and explore some pretty dark scenarios, but I don't care for that. Perhaps it will come out at trial.

But the essential thing is, you can't keep them, period. We'll explain.

BUT FIRST THE DEFENSES. "HE'S THE PRESIDENT. HE CAN DECLASSIFY ANYTHING HE WANTS."

In the main, that is true. And for most classified documents, he could even do it with an executive order. But no such order has been produced, and there are some notable exceptions.

The American Bar Association analyzed the government rules for declassification, and there is this caveat to the sweeping power of the Presidency.

Some secrets, such as information related to nuclear weapons, are handled separately under a specific statutory scheme that Congress has adopted under the Atomic Energy Act. Those secrets cannot be automatically declassified by the president alone and require, by law, extensive consultation with executive branch agencies.

In all cases, however, a formal procedure is required so governmental agencies know with certainty what has been declassified and decisions memorialized. A federal appeals court in a 2020 Freedom of Information Act case, New York Times v. CIA, underscored that point: “Declassification cannot occur unless designated officials follow specified procedures,” the court said.

And no one has any evidence that the "specified procedures" were followed in this case.

But again, classified or declassified, it doesn't matter. You turn them over.

UNDER THE PRESIDENTIAL RECORDS ACT, THE FORMER PRESIDENT GETS TO KEEP THE RECORDS OF HIS ADMINISTRATION. RIGHT?

Not really. Here are some rules of the road from the National Archives and Records Administration.

The PRA requires that all records created by Presidents (and Vice-Presidents) be turned over to the National Archives and Records Administration (NARA) at the end of their administrations. The Presidential Records Act (PRA) requires the President to separate personal documents from Presidential records before leaving office. 44 U.S.C. 2203(b). The PRA makes clear that, upon the conclusion of the President’s term in office, NARA assumes responsibility for the custody, control, preservation of, and access to the records of a President. 44 U.S.C. 2203(g)(1).

The PRA makes the legal status of Presidential records clear and unambiguous, providing that the United States reserves and retains “complete ownership, possession, and control of Presidential records.” 44 U.S.C. 2202. There is no history, practice, or provision in law for presidents to take official records with them when they leave office to sort through, such as for a two-year period as described in some reports. If a former President or Vice President finds Presidential records among personal materials, he or she is expected to contact NARA in a timely manner to secure the transfer of those Presidential records to NARA.

So, you may ask, what does he get to keep? Well, personal stuff. Again from the National Archives statement.

The Presidential Records Act (PRA) defines what constitutes “Presidential records” and what are “personal records.” 44 U.S.C. 2201. Personal records include “diaries, journals, or other personal notes serving as the functional equivalent of a diary or journal which are not prepared or utilized for, or circulated or communicated in the course of, transacting Government business.”

The PRA also requires that all documentary materials “be categorized as Presidential records or personal records upon their creation or receipt and be filed separately.” 44 U.S.C. 2203(b). The President does not have discretion to categorize a Presidential record as a personal record.

And yes, emails, texts and photocopies are covered as well, if they are official records. But didn't Presidents Clinton, Bush and Obama take and store official records? The answer is no. They were preparing presidential libraries, and the records of their administrations were stored in buildings that were found suitable by and under the complete control of the National Archives.

So, given the rules on what you take and what you leave, did the archive gang help President Trump sort through this stuff? Yes, they did. Again, from their official statement.

As explained in NARA’s April 23, 2023, press statement, NARA’s General Counsel sent a letter on February 10, 2023, to the House Committee on Oversight and Accountability, clarifying a prior response he had given to the Committee. The letter explained that NARA did send staff members to the White House in the final weeks of the Trump Administration to assist with the move of the physical records (including artifacts), which was similar to the assistance that NARA had provided to the White House during the three previous Presidential transitions.

Again, and this is crucial. The whole "did he or didn't he" declassify this stuff is not the issue. The issue is, whatever the classification, he doesn't get to keep it, period. Here's the definition of what has to remain with the Archives.

"’Presidential records’ means documentary materials 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.”

This is why when you visit the library of either President Bush, for example, you won't find a top-secret assessment of the US nuclear arsenal in a frame on the wall. If it has been declassified it is still under the guidance of the National Archives.

Presidential Libraries and the Presidential Materials Division work with partners and with the National Declassification Center to declassify these materials by:

• Partnering with the CIA on the Remote Archives Capture Program (RAC)
• Collaborating with the National Declassification Center to prioritize Presidential papers and records for declassification.

You don't just wave a wand.

And regarding the former President taking these records to his Florida home, again the statement on timelines from the Archives.

The Presidential Records Act (PRA) requires the President to separate personal documents from Presidential records before leaving office. 44 U.S.C. 2203(b). The PRA makes clear that, upon the conclusion of the President’s term in office, NARA assumes responsibility for the custody, control, preservation of, and access to the records of a President. 44 U.S.C. 2203(g)(1). The PRA makes the legal status of Presidential records clear and unambiguous, providing that the United States reserves and retains “complete ownership, possession, and control of Presidential records.” 44 U.S.C. 2202. There is no history, practice, or provision in law for presidents to take official records with them when they leave office to sort through, such as for a two-year period as described in some reports. If a former President or Vice President finds Presidential records among personal materials, he or she is expected to contact NARA in a timely manner to secure the transfer of those Presidential records to NARA.

And that last part is what President Biden and former Vice-President Pence did when improper documents were found. And, incidentally, there are special counsels looking at their cases as well. But the folks at the National Archives are are great pains to point out that simple mistakes are not criminal and won't earn any penalties, as long as when discovered, you give the stuff back promptly.

               BUT REALLY. THE ESPIONAGE ACT?

On this subject, a couple of names might be familiar. Chelsea Manning, Edward Snowden, Daniel Ellsberg and Julian Assange. All have been prosecuted under the act. None were spies in the traditional sense, but whistleblowers. Nonetheless, the prosecutions took place, and Manning in particular was given 35 years in the Iron Bar Hotel.

But the name that might be more appropriate is Reality Winner. I know, she sounds like a contestant on The Apprentice, but she was a military contractor. Here's how the New York Times described her case.

Perhaps the most famous defendant sent to prison by federal prosecutors with violating the Espionage Act while Mr. Trump was president is Reality Winner, an Air Force veteran who was working for a military contractor when, not long after Mr. Trump became president, she printed out a single classified document, took it home and mailed it to the news website The Intercept. The report, which was classified top secret, stated that Russian hackers had gained access to voter registration rolls during the 2016 election. She was charged by federal prosecutors with a violation of the Espionage Act and, after pleading guilty to a single count of unauthorized transmission of national defense information, was sentenced to 63 months in prison.

Here's another. Nghia Pho, who worked for the National Security Agency’s hacking unit, was also sent to prison while Mr. Trump was president for violating the Espionage Act according to The Times. Mr. Pho faced charges for taking classified documents to his Maryland home in order to get extra work done at night and on weekends in hopes of improving his performance evaluations.

This came to light after the information was believed to have been stolen by Russian hackers using the antivirus software on his computer. He pleaded guilty  to a single count of willful retention of national defense information and, like Ms. Winner, was sentenced to more than five years in prison.

Now, one big difference with the former President is that he didn't transmit this stuff to anyone, unlike some of the others. But like Mr. Pho, he illegally kept and comically stored national secrets in unlocked rooms at that little beach house with turrets in Florida. And unlike some defenders have claimed, it was not under the watchful eye of the Secret Service. They watch the person, not his stash.

But here's the part of the act that applies here. The Espionage Act itself does not explicitly require prosecutors to prove that the records themselves were classified, and neither Trump nor his attorneys have provided any evidence to suggest they were ever declassified.

Prosecutors have charged Trump with violating a section in the Espionage Act that applies to someone who has "unauthorized possession" of national defense information -- the same crime to which Winner pleaded guilty.

This section of the law makes it a crime to willfully retain the information and fail to deliver it back to the proper U.S. government official. Again, from the Times.

A tape of Mr. Trump bragging about his secret documents calls to mind Jack Teixeira, a 21-year-old Massachusetts Air National Guardsman who apparently posted hundreds of top secret Pentagon documents on social media to impress his fellow gamers — and who almost certainly will spend much of the rest of his life in prison as a result.

                                 OBSTRUCTION?

The obstruction charge comes into play when he very obviously lied about what he had, delayed and moved items for two years and even got his lawyers to lie. Prosecutors don't care for it when you do that.

OK, now the big one if your are defending all this.

                                BUT HER EMAILS!

During her tenure as Secretary of State, Hillary Clinton drew controversy, to say the least, by using a private email server for official public communications rather than using official State Department email accounts maintained on federal servers. After a years-long FBI investigation, it was determined that Clinton's server did not contain any information or emails that were clearly marked classified.^[1] Federal agencies did, however, retrospectively determine that 100 emails contained information that should have been deemed classified at the time they were sent.

She claimed that other Secretaries of State had done the same, and they had. Colin Powell actually told her it was a good idea, and admitted as much. But she was the only one with her  own private server. In July of 2016, FBI director James Comey announced that the FBI investigation had concluded that Clinton had been "extremely careless" but recommended that no charges be filed because Clinton did not act with criminal intent, the historical standard for pursuing prosecution.

On October 28, 2016, eleven days before the election, Comey notified Congress that the FBI had started looking into newly discovered emails. On November 6, Comey notified Congress that the FBI had not changed its conclusion. That, no doubt cost her a close election.

Even after all the "lock her up" stuff in the 2016 campaign, a thorough report was issued by the Trump Justice and State Departments. On June 14, 2018, the Department of Justice's Office of the Inspector General released its report on the FBI's and DOJ's handling of Clinton's investigation, finding no evidence of political bias and basically supporting the decision to not prosecute Clinton.  A three-year State Department investigation concluded in September 2019 that 38 individuals were "culpable" in 91 instances of sending classified information that reached Clinton's email account, though it found "no persuasive evidence of systemic, deliberate mishandling of classified information."

And the stupidity of using private emails for any government communication was borne out when her discussions about the Benghazi hearings with Sidney Blumenthal were hacked and made public.

But back in 2014, before anyone knew this was even going to be a controversy, Clinton's Chief of Staff and attorney's sifted through the emails and when they retained the ones that were business related for archiving, instructed the service provider to change the retention settings for the rest and that had the result of deleting 30,000 older emails. The attorney took the blame for that after she was subpoenaed for everything, and he and the Chief of Staff realized there were older emails that were gone. The FBI recovered some, but none were work related.

Ironically, President Trump was quoted as saying later...

“That attorney, he was great, he did a great job. You know what? He said, he said that it—that it was him. That he was the one who deleted all of her emails, the 30,000 emails, because they basically dealt with her scheduling and her going to the gym and her having beauty appointments. And he was great. And he, so she didn’t get in any trouble because he said that he was the one who deleted them.”

So, make of that what you will, and many of you certainly will. Did Comey, a lifelong Republican, go easy on her? The case can be made. Succeeding investigations didn't find that to be the case, but it will forever be a shadow over her time at State. And if by "go easy" you mean help her to lose an election, perhaps so.

The most ironic thing to me is that the Trump indictment was so unnecessary and the ultimate example of a self-inflicted wound. This goes way beyond an "unforced error." This is holding a can of gas and daring someone to toss a match.

This is creating problems for yourself that you obviously didn't need. And in this case problems with a prison term attached. Though, my prediction is, he will never see an orange jumpsuit, though it would certainly coordinate his whole color palette. And not because he won't be found guilty, he will. Due to the unique nature of this situation, I think some sort of probation will be the solution.

But make no mistake. This is simple stupidity and no rationalization can make that not so.

So, there you are. Will it matter? Probably not if the "shoot someone on 5th Avenue" calculus is still at work here among supporters. I'm just glad I could get all this context in before Jim Jordan burst into my story.