Wednesday, August 17, 2022

Yes - the President can "wave his hand" and declassify something...

As has been argued in the past the President of the United States many times cannot wait for cumbersome procedures to be followed to view classified information outside of the White House or to show classified information to someone on an immediate need to see basis. 


Jim contends that the law says “there has to be a legal record of the declassification — a verbal ‘standing order’ doesn’t cut it.” If Congress steps into the breach to regulate procedures for declassifying intelligence (or at least tries to — more on that momentarily), one would hope that lawmakers would prescribe formal, written memorialization requirements such as the ones Jim has suggested already exist. Jim derives his claim from a Trump-era (of course!) Second Circuit case, New York Times v. CIA. But that case presents a very different situation from the one Trump finds himself in now.
The Times and its reporter, Matthew Rosenberg, were claiming declassification by implication. They contended that through a tweet and other public statements acknowledging a presumably classified program (specifically, our government’s support for the “moderate” Syrian rebels opposed to Bashar al-Assad), Trump had effectively, if inadvertently, declassified the existence of the program, such that the government should not be heard to claim that it was shielded from Freedom of Information Act disclosure because it was classified.
By contrast, in the case of the material the FBI took from Mar-a-Lago, we are dealing with the government’s principal declassification authority: the president. Trump is not claiming that he declassified this information by implication, but that he did so by explication.

So this is sort of the opposite argument. The Times wanted to suggest that Trump declassified something by implication and therefore that information was no longer shielded from FOIA. In other words, when it fit their purpose, they wanted Trump to have the power to declassify information almost by mistake. So they could then see that information under FOIA. They justifiably lost that court case. 

Now the same people are arguing that Presidents really do not have an authority to declassify (as it no longer fits their purpose) unless they go through some sort of paper trail procedure where boxes are checked and initials are garnered (making the false implication that this was the ruling on the previous court case).

The hypocrisy of the argument is astounding.  Their argument ignores the basic fact that Trump never suggested that a tweet was declassifying anything. But he was suggesting there was an explicit standing order to declassify things that he needed to view at Mar-a-Lago. 

As McCarthy explains:

Trump, who was undoubtedly authorized to declassify intelligence, is saying that, while he was president, he personally declassified the intelligence in dispute. There is no law prescribing the minimum that the president must do in order to effect declassification. The directive on which the Second Circuit relied in finding that agency declassification procedures had not been followed in Times v. CIA was an executive order (EO 13,256), not a statute. It bound (and binds) the president’s subordinate executive officials and agencies, but not the president himself; he is bound only by the Constitution.
Basically, since World War II, presidents have assumed plenary authority over classification, citing their constitutional powers as commander-in-chief and chief executive. In past dicta, the Supreme Court has appeared to endorse this arrangement. For example, as CRS notes, in Navy v. Egan (1988), the Court observed that the president’s “authority to classify and control access to information bearing on national security . . . flows primarily from this Constitutional investment of power in the President and exists quite apart from any explicit congressional grant.”

So yes, according to McCarthy and Supreme Court Precedent the authority over classification is plenary (absolute). Moreover, there is no laws that suggests that any particular procedure needs to be followed or paperwork needs to be filled out by a President for him to view it or have it in his possession.

Furthermore McCarthy points out that if Trump had previously been able to take classified documents to Mar-a-Lago and declassify them as a rule, then he very likely believed that the documents that had been in his home was similarly declassified. This would go to intent, even if the DOJ believed that the documents were not declassified. 

Could the government prove beyond a reasonable doubt that he intentionally possessed classified information in an unauthorized place, given that he previously had the authority to declassify that information, he says he exercised that authority, and he might well believe that whatever he did to effect declassification was sufficient?

Now of course, there is an argument that Biden could have somehow "reclassified" the same documents that Trump declassified, and thus created a crime. But that would hardly be the sort of argument that any "reasonable prosecutor" would make. 


29 comments:

Myballsinthewoodsagain said...

Brit Hume makes a great point. If Chaney had made any effort to be balanced in the committee, she would've likely won handily.

Coldheartedtruth Teller said...



• The search warrant served on former President Donald Trump has raised some novel legal questions involving national-security classification.

• If the federal government pursues legal action against Trump over document laws, one obvious defense for Trump might be that he declassified these documents before leaving office.

• Sitting presidents do have wide powers to declassify documents, but they are supposed to go through a detailed procedure to do so.

• This case is so unprecedented that experts urge caution before projecting how courts may respond to such an argument.

The search warrant served on former President Donald Trump’s Mar-a-Lago home appears to involve documents that investigators say should not have remained in Trump’s possession after his presidency. This development has elevated some novel legal scenarios involving national-security classification.

Some of the papers in question may be ordinary presidential documents that fall under the Presidential Records Act of 1978. This law transferred ownership of presidential records to the U.S. government and established a record-keeping structure for presidents to use going forward.

However, a subset of documents being sought by the government might be classified for national security reasons. If so, a law known as Section 1924 could come into play. This provision says that knowingly removing classified documents with the intent to keep them in an unauthorized location is a crime.

If charges are ever brought under the latter law, one obvious defense for Trump might be that he declassified these documents before leaving office. If that was done, then no classified documents would mean no crime.

Is this realistic?

Legal experts say there’s reason to believe this legal argument won’t keep Trump out of legal peril — but they add that this is such an unusual case that it’s hard to rule out any eventuality.

Presidential declassification power

The president’s classification and declassification powers are broad.

The president, as commander in chief, is ultimately responsible for classification and declassification. When people lower in the chain of command handle classification and declassification duties — which is usually how it’s done — it’s because they have been delegated to do so by the president directly, or by an appointee chosen by the president.

The majority ruling in the 1988 Supreme Court case Department of Navy v. Egan — which involved the legal recourse of a Navy employee who had been denied a security clearance — addresses this line of authority.

"The president, after all, is the ‘Commander in Chief of the Army and Navy of the United States’" according to Article II of the Constitution, the court’s majority wrote. "His authority to classify and control access to information bearing on national security ... flows primarily from this constitutional investment of power in the president, and exists quite apart from any explicit congressional grant."

Steven Aftergood, director of the Federation of American Scientists Project on Government Secrecy, told PolitiFact in 2017 that such authority gives the president the authority to "classify and declassify at will."

Robert F. Turner, associate director of the University of Virginia's Center for National Security Law, told us in 2017 that "if Congress were to enact a statute seeking to limit the president’s authority to classify or declassify national security information, or to prohibit him from sharing certain kinds of information … it would raise serious separation of powers constitutional issues."

The official documents governing classification and declassification stem from presidential executive orders. But even these executive orders aren’t necessarily binding on a president. The president is not "obliged to follow any procedures other than those that he himself has prescribed," Aftergood said. "And he can change those."

Coldheartedtruth Teller said...

You actually think he is a credible lawyer?

For what it’s worth, my guess is that congressional Democrats, along with Trump-hostile Republicans (and/or Republicans indifferent to or conflicted about Trump), will propose legislation that would have the effect of rebuking what the former president has done here. That would allow them to go on offense. Even the Trumpiest of pro-Trumpers, unless they’ve lost all reason, would be loath to defend cavalier handling of classified information in a legislative debate. By contrast, a criminal charge would put the anti-Trump forces on defense, as pro-Trumpers argued that he was being selectively prosecuted in a manner that was unprecedented for the entirely political purpose of preventing him from running against Biden in 2024.

I believe that the anti-Trump forces would be willing to take on that fight in order to prosecute Trump on a January 6 offense, because they’re confident the Capitol riot gives them the moral and political high ground. But it seems highly unlikely that they’ll prosecute him on a government-records offense, whether the records in question were classified or not.



Coldheartedtruth Teller said...

WSJ.

People familiar with the Justice Department’s approach have said a primary goal of the search was to ensure the security of highly sensitive national-security documents after the Trump team didn’t relinquish them and amid concerns that the security of the material at Mar-a-Lago had been put at risk.

FBI agents took about 20 boxes of items, binders of photos, a handwritten note and the executive grant of clemency for Mr. Trump’s ally Roger Stone, a list of items removed from the property shows. Also included in the list was information about the president of France, according to the three-page list. The list is contained in a seven-page document that also includes the warrant to search the premises. 

The list includes references to one set of documents marked as “Various classified/TS/SCI documents,” an abbreviation that refers to top-secret/sensitive compartmented information. It also says agents collected four sets of top secret documents, three sets of secret documents and three sets of confidential documents. The list didn’t provide any more details about the substance of the documents.
______

They don't call it a witchhunt

Honest, decent, truthful Rev. said...

In your thread article you say they lost that case.

So Trump should also lose any case in which he claims he declassified documents simply by willing them declassifed.

You seem to be saying that a president can legally classify a document if he considers it needs to be classified, but where is there a law that says he can declassify documents? And where is a low that says he can willfully move documents ot of federal onto private property.

Honest, decent, truthful Rev. said...

OH NO! A cut and paste! Be sure not to post or read it.

January 6 Grand Jury Subpoenaed White House Docs
August 17, 2022 at 9:31 pm EDT By Taegan Goddard 53 Comments

“Federal prosecutors investigating the role that former President Donald Trump and his allies played in the events leading up to the Jan. 6, 2021, attack on the Capitol have issued a grand jury subpoena to the National Archives for all the documents the agency provided to a parallel House select committee inquiry,” the New York Times reports.

“The subpoena, issued to the National Archives in May, made a sweeping demand for ‘all materials, in whatever form’ that the archives had given to the Jan. 6 House committee. Those materials included records from the files of Mr. Trump’s top aides, his daily schedule and phone logs and a draft text of the president’s speech that preceded the riot.

“Asking the National Archives for any White House documents pertaining to the events surrounding Jan. 6 was one of the first major steps the House panel took in its investigation. And the grand jury subpoena suggests that the Justice Department has not only been following the committee’s lead in pursuing its inquiry, but also that prosecutors believe evidence of a crime may exist in the White House documents the archives turned over to the House panel.”

anonymous said...

Me thinks your optimism that the CFO pleading guilty is just a minor inconvenience to donny and his spawn. Hard to believe how naive you can be when you have you mouth stuck on Trumps fat white ass that you kiss all day!!!!!!

INSIDER
'It's over' for the Trump Organization if its CFO Allen Weisselberg pleads guilty, legal analyst and ex-prosecutor says
Matthew Loh
Wed, August 17, 2022, 4:40 AM
Former Trump Organization chief financial officer Allen Weisselberg arrives for a hearing on his criminal case at Manhattan Criminal Court on August 12, 2022 in New York City. The Manhattan District Attorneys's office is charging Weisselberg and the Trump Organization with tax fraud after being accused of paying employees "off the books" in order to pay less taxes. Weisselberg has pleaded not guilty.
Allen Weisselberg, the former CFO of the Trump Organization, is expected to take a plea deal as early as Thursday.Michael M. Santiago/Getty Images
The Trump Organization would be doomed if its ex-CFO pleads guilty this week, a legal analyst said.

Allen Weisselberg is expected to take a plea deal with the Manhattan DA's office, the NYT reported.

The financial consequences for Donald Trump "are huge," said a former prosecutor.

A guilty plea from the Trump Organization's former chief financial officer in the criminal tax case against him would spell financial disaster for former President Donald Trump and his family business, said a former top federal prosecutor on Tuesday.

The New York Times reported that Allen Weisselberg, a longtime top executive for the Trump Organization, is expected to plead guilty in a deal with the Manhattan district attorney's office as early as Thursday.

He and the Trump Organization face 15 felony counts, which include one count each of scheme to defraud, conspiracy, and grand larceny. Prosecutors said the charges stemmed from a "sweeping and audacious payment scheme" in which Weisselberg avoided paying taxes for up to $1.7 million of his income starting in March 2005.

Coldheartedtruth Teller said...



Trump CFO’s plea deal could make him a prosecution witness

By MICHAEL R. SISAKan hour ago

NEW YORK (AP) — Donald Trump’s chief financial officer is expected to plead guilty to tax violations Thursday in a deal that would require him to testify about illicit business practices at the former president’s company, two people familiar with the matter told The Associated Press.

Allen Weisselberg is charged with taking more than $1.7 million in off-the-books compensation from the Trump Organization over several years, including untaxed perks like rent, car payments and school tuition.

The plea deal would require Weisselberg to speak in court Thursday about the company’s role in the alleged compensation arrangement and possibly serve as a witness when the Trump Organization goes on trial in October on related charges, the people said.

The two people were not authorized to speak publicly about the case and did so on condition of anonymity.

Weisselberg, 75, is likely to receive a sentence of five months in jail, to be served at New York City’s notorious Rikers Island complex, and he could be required to pay about $2 million in restitution, including taxes, penalties and interest, the people said. If that punishment holds, Weisselberg would be eligible for release after about 100 days.

anonymous said...

And the margin keeps going the wrong way for you trumpists who worship him as a false idol.....Wisc polls show Johnson losing and the R Gov going down......doesn' get much better than this especially to those who think you are winning by firing Cheney!!!!!

Caroline Vakil
Wed, August 17, 2022, 3:31 PM
Democrats are leading Republicans by 4 percentage points on a generic congressional ballot, according to a new poll.

A Politico-Morning Consult poll released Wednesday found 46 percent of registered voters would choose the Democratic candidate compared to 42 percent who would choose the Republican if the election for Congress was held in their district today.

Twelve percent either said they did not know or had no opinion.

The poll is the latest showing Democrats just outpacing their Republican counterparts on a generic congressional ballot. Another recent survey showed more respondents supporting the Democratic Party controlling Congress than the Republican Party.

rrb said...



So much for comment moderation. The fucking copy/paste plagiarized SPAM from the usual fucking mentally ill ASSHOLES continues unabated.


C.H. Truth said...

You actually think he is a credible lawyer?

He was the lead prosecutor in the 1993 World Trade Center bombing and led to several convictions. He was also lead prosecutor on other high profile terror cases including embassy bombings. You don't get assigned to these cases unless you are the best of the best.

He is not just a "writer" or a "scholar" (although he has written like 8-9 books) - but someone who literally was at the pinnacle of being a federal prosecutor.

So as it pertains to federal prosecution... I think I trust him more than the journalists or politicians you listen to.

C.H. Truth said...

The plea deal would require Weisselberg to speak in court Thursday about the company’s role in the alleged compensation arrangement and possibly serve as a witness when the Trump Organization goes on trial in October on related charges, the people said.

Weisselberg, 75, is likely to receive a sentence of five months in jail, to be served at New York City’s notorious Rikers Island complex, and he could be required to pay about $2 million in restitution, including taxes, penalties and interest, the people said. If that punishment holds, Weisselberg would be eligible for release after about 100 days.


Possibly smossibly...

I have also read up on this and according to these sources there was no demand to testify in any Government case with the plea agreement. If there was so, he would have been given immunity for that testimony.

It is also highly likely that if he had information that could be used against Trump or Trump family members within the organization that he would have been given both immunity for that testimony and no jail time for this offense.

Coldheartedtruth Teller said...

I know that he is brilliant but it doesn't matter to me because of his personal political history

C.H. Truth said...

I know that he is brilliant but it doesn't matter to me because of his personal political history

So you admit that it is more important for you to listen to people politically aligned with you...

rather than someone who you describe as "brilliant" with all sorts of first hand experience... and most importantly a track record of being almost always right about these political issues?


Partisanship over expertise.

At least you fess up to it and are not trying to claim differently.

C.H. Truth said...

This is the way you do this Roger...

You don't listen to any particular experts all the time (unless it is Lawrence Tribe who thinks Trump should be in jail for murder and has gotten virtually everything Trump related wrong).

You literally go searching for people who agree with the "Liberal" side of whatever issue it is and then cut and paste those arguments. It might be someone you disagreed with last week on a completely different subject (and you probably called him a hack). But if they agree on a different issue, well then they are your hero... for now.

I have my sources and those I choose to follow do not always provide the same opinions that "I" would like to believe are true. Many times I might not like the opinions that they write, but I am not going to reject them as hacks (or demand they are not credible attorneys) just because they are providing an opinion I disagree with.

There are times (for instance) that McCarthy seems too close to the DC bubble on things and is clearly biased by that bubble on issues. Where he has gotten a few things not 100% correct, that seems to be the cause. Not because he is necessarily part of the bubble - but because he would believe that the bubble is more credible (or even indicative) of people in general.

Turley is consistent with his beliefs and another one with an excellent track record of being correct. I think he is a bit more outside the bubble than McCarthy.

Even people like Dershowitz (who has been vilified by the left for his legal opinions about Trump) has been correct 90% of the time... not that being correct has helped him with the people who now "shun him".


These are people you constantly attack (unless you find them agreeing with you or more likely found an out of context quote from some liberal who is trying to argue that "even McCarthy or even Dershowitz" believes XYZ.

rrb said...



So the alky has confirmed that he is a rabid partisan hack and will only listen to like-minded rabid partisan hacks who he completely agrees with.

In other news - water is wet, the sun rises in the east, and we're all gonna die someday.


Coldheartedtruth Teller said...

https://www.factcheck.org/2022/08/trumps-dubious-standing-order-to-declassify-documents/

This site has experienced lawyers who don't agree with the lawyer you believe.

From what I've seen is that it is not clear if he has the authority or not.

C.H. Truth said...

Bottom line Roger...

You should listen to people who have a track record of being correct and completely ignore those like Tribe who are constantly over the top wrong. Not sure why that is so hard.

Caliphate4vr said...

Now CH, Roger will tell he was reading at a high school level in utero

C.H. Truth said...

This site has experienced lawyers who don't agree with the lawyer you believe.

It's not the attorneys in this case I believe or do not believe.

In fact this really isn't a matter of opinion.

It is the fact that the USSC has sided with Presidents pretty much universally as it pertains to their plenary authority over classifications. In fact - the USSC has not ruled against a President on classification issues post world war II.


Soooo.... you can read a "Fact check" site if you want. I had already read that article and it was void of one important thing regarding the law. It provides ZERO court precedents to back up the opinions.

So... again. I will stick to what the USSC states as it pertains to my viewpoint.

Coldheartedtruth Teller said...

I read several articles by him.

He never cited a law in regard to this post.

You think that I have been brainwashed. Scott, honest people have different opinions.

His Federalist philosophy is in my opinion is very dangerous just like President Thomas Jefferson said.

The United States has been struggling with this issue since it was created.

I don't think that each state is an independent nation. That's what underlines my opinion.



Caliphate4vr said...

Blogger Coldheartedtruth Teller said...
I read several articles by him.

He never cited a law in regard to this post.


Dumbass learn what separate but equal branches of government means

rrb said...



He never cited a law in regard to this post.

McCarthy:

Basically, since World War II, presidents have assumed plenary authority over classification, citing their constitutional powers as commander-in-chief and chief executive. In past dicta, the Supreme Court has appeared to endorse this arrangement.

For example, as CRS notes, in Navy v. Egan (1988), the Court observed that the president’s “authority to classify and control access to information bearing on national security . . . flows primarily from this Constitutional investment of power in the President and exists quite apart from any explicit congressional grant.”


Nope. Never cited a law. Not one. Not one law.

C.H. Truth said...

Roger...

Not sure what any of that word salad means...

But whether or not you "agree" with the constitution is irrelevant as to whether or not our Justices are sworn to follow and uphold it.

C.H. Truth said...

Roger confuses legal decisions with "laws"...

The reality is that a law can be overturned by the USSC. A USSC decision can generally be only overridden with a constitutional amendment... short of the decision being put in place because of a "void in law" - which would allow Congress to create the law.

Could Congress create a law that controls abortion? Perhaps. The issue with Dobbs was not an overrule of a law, but rather support of a law by overturning a previous decisions.

Could Congress (on the other hand) create a law that limits the constitutional powers of the President? I seriously doubt it. I believe that most courts (and most certainly the USSC) would see this as a violation of the separation of powers.

Much like a President cannot create an executive order that undermines or limits the power of Congress.

Honest, decent, truthful Rev. said...


Top Trump Executive Pleads Guilty to 15 Felonies
August 18, 2022 at 10:53 am EDT By Taegan Goddard 165 Comments

“One of Donald Trump’s most trusted executives stood before a judge on Thursday and pleaded guilty to 15 felonies, admitting that he conspired with Mr. Trump’s company to carry out a scheme to avoid paying taxes on lavish perks — even while refusing to implicate the former president himself,” the New York Times reports.

“As part of the plea deal with the Manhattan district attorney’s office, the executive, Allen Weisselberg, is required to testify at the company’s trial if prosecutors choose to call on him, and to admit his role in conspiring with Mr. Trump’s company to carry out the tax scheme. That testimony could tilt the scales against the company, the Trump Organization, as it prepares for an October trial related to the same accusations.

“Under the terms of the plea deal, Mr. Weisselberg is expected to receive a five-month jail term, and with time credited for good behavior, he is likely to serve about 100 days. Mr. Weisselberg, who was facing up to 15 years in prison, must also pay nearly $2 million in taxes.”

C.H. Truth said...

Yes Reverend...

The old "cut and paste"....

Did you happen to notice that the continue to refer to the Trump Organization as "Mr Trump's Company" - in spite of the fact that much of this activity took place while Donald Trump was President (and not involved in the Trump Organization at all)?

So there is a difference between claiming to conspire "with the company" to not pay taxes on fringe benefits (something most every company does btw) and conspiring with Trump himself.

It would be extremely unlikely that Trump (even while running the organizations) would have been involved with these sorts of nuts and bolts financial issues and there would have been no chance that he had anything to do with any of this for the four years he was President.


If this guy had anything on Trump - then he probably would have given it up to get probation or even immunity. If he does have something and simply decided that 15 months was not worth giving it up... well then that ship has sailed. The 15 months is way "more" than thousands of other executives in other companies doing the same thing will ever see.

C.H. Truth said...

Roger...

I am not publishing any more of your cut and pastes arguing about what the "experts" say. I will wait till you come up a high level appeals court ruling (that stood) or a USSC ruling...

that backs up the opinions of these experts.

Because right now the experts I read and trust have those opinions and can refer to those opinions... that the CIC has plenary authority over classification.

anonymous said...

experts I read and trust have those opinions and can refer


Battle of opinions scotty and you are acting most childish taking your ball home......LO>OLOLOLOL