As the ball keeps moving … now, it’s said, that the real issue re documents at Mar-a-Largo is possession; that is, that President Trump took documents that belong to the government the second after he left office. This is as moronic as the rest of the allegations.
The former president has the legal right to access any and all of the documents created during his presidency, classified or otherwise. Moreover, the second before he left office, by his very actions alone in taking the documents, it can be said that he declassified them. This was discussed at length in 2017 when he handed classified information to the Russian foreign minister. The former president cannot be charged under the Espionage Act of 1917 for this reason and more, including Article II Sec 1 of the Constitution. He is the executive branch, commander in chief, and is not limited by subordinates or agency regulations in the exercise of this power. There is separation of powers as well, meaning Congress cannot diminish a core power of the presidency by statute. And imagine if he could be charged, with endless debates over bureaucratic processes followed or not followed, and the impact that would have on the ability of a president to exercise his executive powers. Among other reasons as well, this is why many of us argue that a sitting president cannot be inducted. Obviously, Trump here is a former president. But that gets back to my point about interpreting a president’s action upon his departure.
Now we get to document possession issue. Under the Presidential Records of 1978, there are no penalties or enforcement mechanisms. Clearly, the law was never intended to be used as a criminal statute or prosecutorial tool against a former president. And there’s nothing in the legislative history to support such an effort. A former president is given great latitude in access to documents, classified or otherwise. Even judicial review is very limited, as courts have said in other circumstances. The point is, the second after a president leaves office he’s not subject to criminal charges or penalties if he has documents or other information.
The Act anticipates negotiations between a former president and the Archives related to the nature of information, disposition of the information, etc. This is a process. That said, other than the boxes seized by the FBI, obviously millions of pages of records created in the Trump administration are controlled by the Archives. This fact, and the fact that there have been lawyer-to-lawyer negotiations over the remaining boxes, as well as voluntary access to the former president’s home, belies the absurd claim that he “stole” government property or “obstructed” the Archives somehow or had criminal intent, etc.
Indeed, the former president was out of office only 12 months when the issue of boxes became known publicly. That’s a very short period of time. Sometimes negotiations go on for years.
If there was some sudden urgency in controlling the documents, there were many ways to obtain them without resorting to the criminal process. In fact, it’s shocking that a federal grand jury in DC has been empaneled in the first place, not to mention spies and others at Mar-a-Largo allegedly secretly leaking to the FBI. What’s going on here?
Even if it’s believe that documents are being moved or destroyed, the FBI had the power to remove them via a subpoena enforced by a subsequent court order if necessary. If there’s actual evidence something was destroyed, real probable cause, and the government truly believes a crime was committed, then go to a real judge and seek an arrest warrant. But what occurred here was the issuance of a general warrant, in violation of the Fourth Amendment, enabling the government to grab everything in sight for a period of nine hours, and even search the former First Lady’s clothes closet. That’s why, at least in part, this indicates the use of a pretext to search for information related to other matters, like Jan. 6. It’s no accident that the same US attorney overseeing the Archives investigation is overseeing the Jan. 6 investigation.
Also, why was a matter of such constitutional consequence heard by a master, not an Art. III federal judge? A master is not confirmed by the Senate. And if there was some kind of urgency, AG Garland was slow to authorize the seeking of a search warrant. And once secured, the warrant wasn’t executed for three days. Again, this is why there’s speculation about the government’s actual intentions.
As I hope you can see, this entire event is appalling. Especially when you consider further that Hillary Clinton and James Comey, neither of whom were president with the attendant protections, were never subjected to a search warrant, given every deference, and never indicted.