Prosecuting Trump for Mishandling Classified Materials

It's complicated, hard to prove, and politically fraught.

The Intelligencer’s Benjamin Hart has an informative interview with Bradley P. Moss on the FBI search of Trump’s Mar-a-Lago home. Some highlights:

The DOJ has a policy of not commenting in the middle of an investigation. I see a lot of Republicans (but not just Republicans) calling on the DOJ to explain what it’s doing here given the unique circumstances. Do you think it should? And do you think it might do that?
No, I don’t think they should comment. And it’s for the reason that Trump is entitled not only to privacy on this matter but to a presumption of innocence. To disclose during an ongoing investigation, where there has been no indictment yet, details about what they’re investigating would prejudice not only Trump but a potential jury pool. If there is enough to bring a charge, they bring a charge and speak to the public through the indictment and what comes out during the trial. If they were to do it publicly, now, it would prejudice the entire process and violate any number of due-process principles that, ordinarily, Republicans are always talking about.

In fairness, while it was always a strong concern of mine, it’s never been a major concern for Republicans writ large, who tend to err on the side of the police rather than those under investigation.

Do you see any significance in the fact that Trump hasn’t made public the warrant that he must have received, which would presumably list what the FBI was after and what it took from Mar-a-Lago?
This is the scam that Trump runs. By concealing the actual documentation, he and his allies can portray the whole situation however they want. They can throw innuendo and accusation out there; they can do everything they can to rev up their base. Their media allies, especially on Fox, OANN, and Newsmax, were all over the place with every wild accusation under the sun. And here’s the thing. If any of those accusations that we’re hearing from Trump lawyers had a modicum of merit, there would’ve been emergency motions for temporary restraining orders to enjoin the FBI from going through everything; there would’ve been motions to suppress the warrant itself. This is what actual lawyers with credible arguments would be doing right now, not going on TV and leveling innuendo and accusations. But because they don’t have anything to really rely on, they don’t take that step. As people like Sidney Powell and her team of crack lawyers have learned, you can’t play the cable-news game in court.

This is a strong point that ties in with the previous one: Trump and his allies are making hay of the fact that DOJ is forbidden from saying what they were looking for yet, even though Trump’s attorneys have a copy of the warrant, they’re not showing it to us precisely because doing so would undermine their claims.

It gets better:

I was thinking of famous examples of classified information being mishandled by former national security adviser Sandy BergerDavid PetraeusHillary Clinton. Obviously, none of these people are ex-presidents — is there any direct analog with other public officials to what Trump may have done? And what ended up happening in those cases?
Petraeus and Berger are two of the more high-profile incidents. With Petraeus, part of the issue was that he was storing classified notebooks in his attic. The misdemeanor he pled guilty to is now a felony under a law that Trump signed in 2018. That was part of the fallout from the Hillary Clinton saga. One of the things that Republicans were upset about was that the provision most likely to be invoked was only a misdemeanor at the time. So they modified it in 2018 to become a felony going forward.

Aside from the true but shopworn point that Trump and his inner circle routinely committed violations of national security law and norms far greater than those for which they wanted to see Hillary Clinton locked up, Republicans actually pushed very hard to turn what had been misdemeanors into felonies and Trump himself signed this into law.

Here, though, it gets dicey:

The other examples have been individuals who aren’t high-profile public officials but mid-level bureaucrats at several agencies who have been prosecuted and either pled guilty to or been convicted of removing classified documentation and storing it in unsecured locations. But by and large, the government usually does not prosecute those cases, because they find it sufficient to simply fire the employee and revoke their security clearance. They do choose sometimes to pursue criminal prosecution in certain circumstances when they believe the offense is egregious enough. A criminal prosecution for removal of classified information requires a more complicated criminal proceeding that involves what’s known as the Classified Information Procedures Act and allows all sorts of classified discovery to the defendant. That’s not something the government likes to do all the time. So, often, they exercise their discretion not to prosecute, but they certainly have done so in the past.

It’s a weird Catch-22 in our system. When very senior people commit these offenses, we tend to treat them leniently for a variety of reasons. Petraeus had decades of honorable service, so letting him off with a relative slap on the wrist—and essentially ending his chances to serve in more senior positions—seemed like the right thing to do. Clinton was both a former First Lady, a senior cabinet official, and the Democratic nominee for President; there was simply no way she was going to be charged for relatively minor violations of the law. At the same time, absent truly grave danger to the national security, there’s just not much point in bringing the hammer down on more junior folks. Simply stripping them of their security clearance ends the threat.

Trump’s lawyers may argue that he’d already declassified the documents in question before his presidency ended. I don’t quite understand why we don’t know whether he declassified them a year and a half after he left office.
The reason we don’t know is because Trump’s administration was chaotic and completely incompetent at basic administrative duties.

Correct. Which, ironically, works in their favor here.

So yes, this will be their likely defense. It’s an uncharted issue of law, because there’s never been a president who’s been prosecuted for this. The president of the United States and only the president of the United States has a unique authority when it comes to classification and declassification. The president is the ultimate authority, without scrutiny or any oversight, of what is classified and what is declassified. He can share properly classified information with anyone he wants with impunity. No one can oversee it. That’s his constitutional authority under Article II. But if you do choose to move to declassify something, there are procedures and security-classification rules as to how you do so. It can’t be as simple as Trump looking at a box of documents and saying, “I declare them declassified.”

Every single document has to be specifically identified, and a procedure has to be followed to declassify it, because every single classified document is logged. The way it works is that you have a cover page that indicates the classification for the document. You have classification markings at the top and bottom of each page, and you have a stamp on every classified document that indicates when it was classified, by whom and under what authority in the executive order, and when the classification ends. When you declassify something, you have to address all of that for each document. Not only do you have to mark out the markings, you have to stamp it “Declassified” and say who declassified it, under what authority, and when. Until you do that, no matter what verbal order Trump may have given, the document is still to be treated as classified.

So, look, Moss is a leading expert in national security law and I am not. But I’m not sure he’s right here.

He’s absolutely describing how the classification process is supposed to work. And, indeed, it’s how it actually works for the little people. But, rather obviously, it’s not how it works—or even can work—for the President.

In the case of a normal President—say, Joe Biden—we simply trust his judgment. If he’s in a meeting with, say, the Canadian Prime Minister or the President of Ukraine, and he decides that he simply has to share some intelligence that’s marked TOP SECRET, or even SECRET NOFORN, it’s his call. He doesn’t need to mark the documents down first. Indeed, he doesn’t even have to go back and have somebody change the classification level later. If the President decides someone without the proper clearance has a need to know, he can share it.

Now, actually permanently declassifying documents is less exigent and, theoretically, the process Moss describes should indeed be followed. But neither the President of the United States nor his senior-most staff is going to personally execute the markup or even file the paperwork necessary to get lower-level folks to do it. Unlike us peons, they’re not even required to take the necessary training to know that they’re supposed to follow these procedures.

Again, in a normal administration this is all irrelevant. There will be professional staffers to take care of this sort of thing. But, if Trump declared these documents declassified, they’re declassified.

Do I think he actually did declare them declassified? Nope. But it would be next to impossible to prove he didn’t.

His successor, presumably, could re-classify them and demand he turn them over. But there’s no way in hell he’s going to try to prosecute Trump for taking them in the first place.

That doesn’t sound like the level of attention to detail the Trump White House was known for. 
Correct. And that will possibly be his downfall here. The unresolved issue is, if he thought these documents had all been declassified, does that undermine the intent element for some of these crimes? It certainly will be a fascinating legal debate in pretrial motions.

I was going to ask how his defense on this would hold up in court, but I guess it depends on what we learn about these procedural issues. 
There is not a lawyer alive who can tell you with any complete certainty how that would play out, because there is no precedent. There is zero precedent for when a former president is accused of having mishandled classified information. We are in completely uncharted territory. Everyone is speculating, giving their best professional opinions, but no one knows how the initial trial-court judge would rule. No one knows how the appellate court, which would certainly be involved if Trump loses, would rule, and no one knows how the Supreme Court would rule.

Moss is thinking like a lawyer here. This is ultimately a political call, not a legal one. And, again, I find it unfathomable Biden would let his Attorney General go forward with a prosecution simply on the grounds of mishandling classified documents, delightfully ironic though it would be.

Ultimately, Moss agrees:

What do you think happens next?
The FBI will go through all the records. They’ll see if what they’ve collected corroborated their concerns that additional classified documents had been stored at Mar-a-Lago, and they’re going to have a choice to make. They’ve been doing interviews for months. They’ve been collecting information. They’re gonna have to decide, first, whether there’s a criminal case to bring under any of the provisions we’ve discussed. And second, is it rock-solid enough to bring against a former president — keeping in mind the potential declassification defense he’s almost certainly going to raise in pretrial motions. That is ultimately not just a legal question but a political one. I would not be surprised to see that question brought all the way up to the attorney general himself for a final decision.

Again, I think the decision will go one notch higher than that. If Garland decides that there’s not strong enough a case to prosecute, Biden will absolutely back that. If Garland wants to prosecute, though, he’s going to have to persuade Biden that he’s got the goods.

Nobody, not even the President, is above the law. If it can be proven that he committed serious crimes, he should absolutely be prosecuted, the optics of charging the sitting President’s political nemesis be damned. That’s especially true if they have the goods on him with respect to the Capitol riot. But there’s no way in hell he’s charged with even an egregious mishandling of information he had a plenary right to handle as he saw fit.

FILED UNDER: Crime, Law and the Courts, National Security, , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. CSK says:

    There’s speculation from one of Trump’s ghostwriters that he took these documents to sell as memorabilia, particularly ones with his signature.

    2
  2. OzarkHillbilly says:

    who tend to air on the side of the police rather than those under investigation.

    This gave me a giggle. It’s the sort of thing I do far too often. Now to finish this post.

  3. Jen says:

    So, look, Moss is a leading expert in national security law and I am not. But I’m not sure he’s right here.

    He’s absolutely describing how the classification process is supposed to work. And, indeed, it’s how it actually works for the little people. But, rather obviously, it’s not how it works—or even can work—for the President.

    In the case of a normal President—say, Joe Biden—we simply trust his judgment. If he’s in a meeting with, say, the Canadian Prime Minister or the President of Ukraine, and he decides that he simply has to share some intelligence that’s marked TOP SECRET, or even SECRET NOFORN, it’s his call. He doesn’t need to mark the documents down first. Indeed, he doesn’t even have to go back and have somebody change the classification level later. If the President decides someone without the proper clearance has a need to know, he can share it.

    I think you’re incorrectly assessing/combining very different situations here. This isn’t a case of Trump being in a situation in which he has to make an immediate call, like in a meeting with a foreign leader. He removed classified documents, in violation of the Presidential Records Act, for an undisclosed purpose.

    In the situation of a meeting, you are correct that we have to trust the president’s judgment. But this current situation isn’t that setting. In a meeting setting, there’s presumably a discussion going on, others in the room with similar clearance, and so on. Carting off boxes with top secret information is none of that. It’s dangerous, and I’m surprised people are being so cavalier about this.

    As stated in the interview, it is not the case that Trump can simply wave at a box and say “this is now declassified.” Seriously, what if there are nuclear secrets in that box? Sources and methods? Names of high-level informants? Of course there should be proper review.

    The bottom line is that we don’t have any idea what he removed or for what purpose. But we cannot give him a pass on this.

    The President has a lot of authority and leeway, but it’s not unlimited. As discussed before, the Secret Service has the *legal authority* to overrule the President. There simply must be checks and balances, especially when it comes to classified information.

    20
  4. OzarkHillbilly says:

    I agree with Moss’s analysis that it is unlikely trump will be prosecuted solely for the mishandling of classified materials. If that is all this was about than getting the materials back is probably all they were really trying to do. IF that was the sole reason for the search. With trump, that is a big if, a blue whale sized if. This idiot probably commits felonies with every other breath not even knowing he is doing such. It has never been a thing he had to concern himself with.

    I do disagree with a couple things you said James.

    But neither the President of the United States nor his senior-most staff is going to personally execute the markup or even file the paperwork necessary to get lower-level folks to do it. Unlike us peons, they’re not even required to take the necessary training to know that they’re supposed to follow these procedures.

    They should be required to get that training and everybody including the President should be required to follow the necessary procedures. And yes, they all have underlings to dot all the Is and cross all the Ts, but they should have to make sure somebody does.

    But there’s no way in hell he’s charged with even an egregious mishandling of information he had a plenary right to handle as he saw fit.

    trump lost any right to handle these materials on January 20, 2021.

    9
  5. Scott says:

    I don’t think that if Trump (or his minions) just returned boxes of classified information soon after moving to MAL and basically said, “Oops, my bad”, no one would ever say anything. But, after that, to continue “finding” classified signals criminal intent.

    I go back to my own totally speculative thesis I wrote on Tues. I think Trump had the items he wanted copied and then returned the originals.

    2
  6. SC_Birdflyte says:

    Amidst the wailing and gnashing of teeth in the QOP mediaverse is a column in today’s WSJ with the statement “An FBI raid against a former president should never happen. End of discussion.” I’m glad that got cleared up. I’ve always believed that “Great power = great accountability.” Now I see that I’ve gotten it backward all these years.

    4
  7. Jen says:

    “An FBI raid against a former president should never happen. End of discussion.”

    Correct. Because we should never elect someone so morally bankrupt that a properly served warrant from the FBI should ever be needed.

    Or did they have another point?

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  8. Matt Bernius says:

    On the topic of the warrant, multiple organizations including Judicial Watch and the Albany Times Union have filed requests to unseal (if sealed) and release the warrant. The courts have 5 days to respond, so we may have a better idea of what was at stake very soon:

    https://www.timesunion.com/state/article/Requests-filed-to-unseal-search-warrant-used-to-17365143.php?IPID=Times-Union-HP-CP-spotlight

    1
  9. charon says:

    @Matt Bernius:

    Trump has the warrant and is free to release it as he pleases, Trump’s team says he definitely will not. Same for inventory of evidence taken, Trump could release it but refuses to do so.

    6
  10. charon says:

    Simple sylogism:

    Premise 1: When FBI searches a residence, charges usually result.

    Premise 2: Mishandling of documents is commonly not charged.

    Conclusion: There is more than just document mishandling.

    Bradley Moss is just one expert, I have been reading others. My guess there is a good likelihood this search was about dotting i’s and crossing t’s for a case that is already largely made.

    4
  11. Slugger says:

    It is good to see how a real strong man like Biden acts. Not some weak chants of “Lock her up” at a rally but real action. The whining, the crying, the empty threats are all marks of losers. I like Presidents who are winners, who speak softly but carry a big stick. “Let’s Go Brandon”? Well, Brandon is going and rolling now.

    2
  12. charon says:

    @Scott:

    I go back to my own totally speculative thesis I wrote on Tues. I think Trump had the items he wanted copied and then returned the originals.

    I think its the exact opposite, that things such as transcripts of conversations with foreign leaders must exist but the government does not have them – perhaps because Trump does not wish it known what was said. One of these conversations was connected to an impeachment for example.

    1
  13. Han says:

    @Jen: And on top of that, the president sharing top secret info with those who do not possess clearances, does not declassify that material. And it should be obvious why.

    4
  14. wr says:

    It seems pretty silly to speculate about what kind of charges can be laid against Trump while we have no idea what’s going on. My favorite pet theory is that there were some foreign communications intercepted by the NSA that included classified information — that happened to match documents in Trump’s possession. That would probably be worth prosecuting!

    3
  15. gVOR08 says:

    In an otherwise unremarkable column today Jenifer Rubin noted in passing a detail I had forgotten and haven’t seen mentioned in this recent pile of stories. DOJ convened a grand jury on this matter in May. There’s a useful brief timeline here. (Aside from the timeline mostly a detailed review of the relevant statutes and precedent, concluding the authors have no idea how any of it applies.) I have no idea if the grand jury is still in session.

    Unless they have solid evidence of something really egregious I don’t see Trump being prosecuted. They got their stuff back, they’ll call it good. And they don’t talk about open cases so we may well never know what happened here. But maybe we’ll see some minions charged.

    2
  16. charon says:

    So I found this looking around my file of stuff:

     https://www.lawfareblog.com/what-we-do-and-dont-know-about-fbis-mar-lago-search

    The DOJ sent the head of counterintelligence and export control to Mar a Lago in June of 2022, so two months ago, with several agents. They met with trump’s lawyer and were informed there was still classified documents on site. CNN has the details:

    https://www.cnn.com/2022/08/08/politics/mar-a-lago-search-warrant-fbi-donald-trump/index.html

    Apparently 10 more boxes. Whatever the DOJ official saw or heard must have been really bad. Additionally, this is the DOJ official who gets involved if you’re worried someone was giving, trading, and/or selling classified information.

    3
  17. CSK says:

    According to Rolling Stone, Trump is asking his “allies” which one of them is wearing a wire.

    4
  18. charon says:

    @charon:

    BTW, in the context of making a criminal case, it is important that the return of documents was requested in June but the documents were not returned, thus willfulness, not just sloppy procedures.

    3
  19. JohnSF says:

    @charon:
    One possibility that floats around my head, is that something caused someone to want to look up a document.
    And at that point, when no such document could be found, it became obvious that the sole copy was at Mar-a-Lago.
    So it someone decided to go get it back. 🙂

    As to what the document might be, why no copy, why Trump had it, what caused anyone to want to refer to it…*shrugs*

    Anyway, just my idle guess, and I’m likely completely wrong.

    3
  20. R. Dave says:

    @James Joyner OP wrote:Do I think he actually did declare them declassified? Nope. But it would be next to impossible to prove he didn’t.

    As @Jen pointed out, this is a very different situation than real-time declassification by the President while he’s in office. This is a bunch of boxes being carted off when he leaves office that, when discovered, he retroactively claims he declassified, conveniently without having made any record of that act. I have no idea how the courts will handle this, if it ever even comes to trial, but personally, I would think that should be treated as an affirmative defense with the defendant having the burden to show that the declassification actually occurred while he was in office and had the requisite authority. Otherwise, it’s just carte blanche for outgoing Presidents to cart off whatever they want for whatever purpose they want and then, if caught, make a virtually irrefutable claim that they had actually declassified it all one night when they were alone on the can.

    6
  21. charon says:

    @R. Dave:

    Otherwise, it’s just carte blanche for outgoing Presidents to cart off whatever they want for whatever purpose they want and then, if caught, make a virtually irrefutable claim that they had actually declassified it all one night when they were alone on the can.

    It all is government property, he is not allowed to take any non-classified stuff either, there is legislation about presidential records.

    4
  22. charon says:

    @Matt Bernius:

    I have no idea how likely those requests to unseal are to succeed. If they do have any likelihood of success, that would be a good reason for the DOJ to schedule the search and seizure as one of the last steps before bringing charges. (Like I said upthread about dotting i’s and crossing t’s).

    1
  23. Jen says:

    Incidentally, I knew that I’d recently read a thread that specifies that there is an actual process (applicable to presidents too!) for declassification. Turns out it was a thread posted by drj on Tuesday.

    Here’s the tweet thread from Bradley P. Moss, a national security lawyer.

    To sum up:
    * Trump only had the authority to declassify things while he was still President.
    * The law requires follow-through when a document is declassified. So, he couldn’t just declassify boxes of stuff as he wandered out the back door of the White House.
    * The classification authority is retained by the agency that originally classified the document if Trump did not take the proper post-declassification steps that he is required by law to take.

    This all makes sense to me, because it means that yes, the President does have the ability to declassify documents, but–there is an actual process to follow. Now, I know that Trump has the impulse levels of a ill-behaved toddler, and would fail the marshmallow test almost immediately, but following correct procedures when they relate to *national security* seems like something we shouldn’t let slide.

    6
  24. CSK says:

    David French gives an explanation of why Trump isn’t making the warrant public: It’s very good for him to have his fan club in a rage.

    http://www.theatlantic.com/ideas/archive/2022/08/donald-trump-search-warrant-fbi/671102/

    1
  25. EddieInCA says:

    There has been alot of talk from the right wing, and even people like Cuomo and Yang, questioning “Why not subpoeana him instead of a raid”?

    Well, on NPR yesterday, a Former NSA analyst made a very simple point. I’m paraphrasing but it’s close to an accurate quote:

    “We are overthinking this. If it is about National Security Documents, it’s simple. It’s stolen material at this point. Literally stolen. If someone stole $100,000 from the government, and you knew exactly who stole it and exactly where it was, would you subpoena them, asking them to return it post haste? No. You’d send in the Police or Marshalls and get the $100K. This is literally no different. 19 months later, this is stolen property the US Government needs to get back.”

    Crystallized it for me.

    12
  26. charon says:

    @EddieInCA:

    There is also a fifth amendment aspect – he can cite the fifth amendment to avoid the action of surrendering the material to a subpoena. Fifth amendment does not apply to a search and seizure because no action by Trump is needed.

    4
  27. Roger says:

    Petraeus had decades of honorable service, so letting him off with a relative slap on the wrist—and essentially ending his chances to serve in more senior positions—seemed like the right thing to do. (emphasis added)

    That’s a very inside-the-beltway perspective. Petraeus illegally retained notebooks full of classified information, then shared them with his biographer/mistress and lied to the government about it when asked. Before giving her the notebooks, he himself described the information in them as “highly classified…I mean there’s code word stuff in there.” Court documents said that the notebooks contained, among other classified information, the identities of covert officers, intelligence capabilities and mechanisms, and information regarding Petraeus’s discussions with the President. This came to light because the woman he gave the notebooks to was unstable enough that she was cyberstalking another woman.

    From my vantage point here in flyover country, way outside the beltway, allowing Petraeus to plead to a misdemeanor under these circumstances never seemed like the right thing to do. Of course, I know I have a different perspective than a lot of folks do. To me, betraying years of honorable service is an aggravating circumstance, not a mitigator.

    15
  28. Andy says:

    Nice post James.

    His successor, presumably, could re-classify them and demand he turn them over. But there’s no way in hell he’s going to try to prosecute Trump for taking them in the first place.

    Yes, reclassification is a thing. If Trump declassified something, that doesn’t mean it stays declassified forever, and Biden can reclassify it and probably can seize any such documents or information in private hands, including Trump.

    @Jen:

    I think you’re incorrectly assessing/combining very different situations here. This isn’t a case of Trump being in a situation in which he has to make an immediate call, like in a meeting with a foreign leader. He removed classified documents, in violation of the Presidential Records Act, for an undisclosed purpose.

    The Presidential Records Act is not the same thing as laws about removing classified information.

    In the situation of a meeting, you are correct that we have to trust the president’s judgment. But this current situation isn’t that setting. In a meeting setting, there’s presumably a discussion going on, others in the room with similar clearance, and so on. Carting off boxes with top secret information is none of that. It’s dangerous, and I’m surprised people are being so cavalier about this.

    As stated in the interview, it is not the case that Trump can simply wave at a box and say “this is now declassified.” Seriously, what if there are nuclear secrets in that box? Sources and methods? Names of high-level informants? Of course there should be proper review.

    Except the President can wave and hand and say something is declassified. The office comes with that plenary authority. Even though it’s unintuitive, there actually is no distinction between the situations you describe. You are right that there “should be proper review” but when it comes to Presidential authority, proper review is not a requirement because the entire system of classification flows directly from the Executive.

    There are no criminal checks and balances when it comes to the President declassifying something, the checks and balances are political.

    And here’s another factor – any presidential appointee or employee of the Executive Branch that had access to classified information is supposed to sign a non-disclosure agreement when leaving the job or when they no longer have access to classified information. That NDA is legally binding and is one of the primary mechanisms that allow people to be prosecuted for disclosing classified after they leave office.

    Presidents don’t sign non-disclosure agreements when they leave office.

    So I don’t think anything will come from any attempt to prosecute Trump for mishandling classified information. The Presidential Records Act is another matter.

    1
  29. Blue Galangal says:

    If it can be proven that he committed serious crimes, he should absolutely be prosecuted, the optics of charging the sitting President’s political nemesis be damned.

    So first it was a sitting president couldn’t be charged. Now it’s anyone in a different political party than the sitting president?

    1
  30. Jen says:

    @Andy:

    The Presidential Records Act is not the same thing as laws about removing classified information.

    I know. He’s violated both. Not sure what your point is here.

    Except the President can wave and hand and say something is declassified. The office comes with that plenary authority

    That, according to a number of national security legal experts, is not the full story. Yes, he can declassify anything BUT, there’s a process. Even after the fact, there’s a process.

    6
  31. OzarkHillbilly says:

    And it begins:

    Potential threat at Cincinnati FBI building leads to pursuit, police situation in Clinton County

    Something tells me it will not end well for the armed MAGAs.

    1
  32. Just nutha ignint cracker says:

    @EddieInCA: And any documents are arguably worth more than $100k, relatively (multi trillion-dollar budget) speaking.

    1
  33. Jon says:

    @Jen: To add to what you just said, and from the Bradley Moss twitter thread you posted earlier:

    To actually declassify something, though, he absolutely had to take that action before he left office. He lost his authority when the clock struck noon. And to actually declassify a document, the letter of the law requires actual follow through. This isn’t me saying it: this is what DOJ and the White House conceded in FOIA litigation during the Trump years when he would tweet out declassification orders, or issue them via press statements. Unless he actually followed through with a declassification order that went to the agency with control over the document, the agency did not treat the statements as self-executing declassification orders and insisted the documents were still classified.

    6
  34. Andy says:

    @Jen:

    That, according to a number of national security legal experts, is not the full story. Yes, he can declassify anything BUT, there’s a process. Even after the fact, there’s a process.

    There is a process for everyone except the President. Note that the President can disclose any classified information he wants to, to anyone he wants to, for any reason he wants to, without any criminal penalty, unlike every other Executive branch official or employee. He can do that and still determine that the information is classified, preventing everyone else in the Executive branch from legally disclosing it.

    Similarly, the procedures put in place to manage classified information come entirely from the authority of the Executive and apply to Executive branch employees but not to the President. Again, that is what plenary power provides.

    1
  35. Jen says:

    @Jon: Yep. But Andy disagrees so ¯\_(ツ)_/¯

    3
  36. Jon says:

    @Andy:

    He can do that and still determine that the information is classified, preventing everyone else in the Executive branch from legally disclosing it.

    And that would end when he stopped being president, meaning the documents were indeed never declassified. Saying that a President has the authority to situationally ignore/wave document classifications *while President* is not the same thing as saying the documents were declassified.

    @Jen: Yup, oh well! Also I kinda wish there was an ‘h’ in my name so our nyms didn’t look so similar, but I am lazy and there are better things for me to fret about.

    2
  37. Modulo Myself says:

    Whoever wrote up this warrant must have had some notion of what was actually classified. They weren’t just speculating on the internet about what they didn’t know. If they were going after classified documents, either the DOJ had no knowledge of Trum declassifying them or they did, and they said screw it. Given that Trump managed to hire both Rudy Guiliani and John Eastman, my speculation says that the braindead fallback of the intricacies of the law means nothing here. He just grabbed these documents because he wanted them just like squeezed the Ukraine to go after Biden. He got caught doing the latter and nobody in his party cared, so why should he worry about the former?

    2
  38. Scott F. says:

    @CSK & @OzarkHillbilly:
    The Trumpkins are exploding with rage, the entire Republican Party is rallying around a subject of a judicially approved search warrant and calling for the gutting of the deep state (which now apparently includes the FBI!!!), while the rest of us are debating the finer points of due process. I‘m concerned we don‘t have our attention on the more pertinent storyline.

    3
  39. Jay L Gischer says:

    Re: Trump has the impulse control of a toddler.

    I can see why people say this. The whole ripping things up, flushing them down a toilet, ignoring salient advice business.

    And yet, he can be very disciplined in his speech. It’s the sort of thing that makes him say, “It was a clean call”. He has a set of rules that he follows, they just aren’t the same as the rules you and I follow. He also gave a “clean” speech on 1/6. He didn’t cross any bright lines for incitement, though we know what his intended result was.

    I think it’s more that he enjoys breaking rules than he can’t control himself.

  40. Andy says:

    @Jon:

    Saying that a President has the authority to situationally ignore/wave document classifications *while President* is not the same thing as saying the documents were declassified.

    The President can also declassify information/documents at will. And, as I noted above, a future President can reclassify them or do whatever he/she wants.

    1
  41. Andy says:

    One other aspect that hasn’t been mentioned much is the history of the Trump administration classifying stuff that normally wouldn’t be classified or classifying it at a higher level to prevent wider dissemination.

    Here’s an example I went through and explained a few years ago.

    I wouldn’t be surprised if there are a lot of similar documents in the trove the FBI seized – stuff that is marked classified that really shouldn’t be for political reasons or stuff that is improperly marked, like the example I linked to.

    Even in that case, Trump had the power and authority to do that. The Biden administration can, of course, re-adjudicate the classification level for all those documents according to the criteria his administration has set.

    2
  42. R. Dave says:

    @Andy: Even if the President has plenary authority to declassify things without following any form of process or recordkeeping, there’s still the evidentiary matter that I noted in my comment. The process and recordkeeping that goes with it provide the necessary evidence of the declassification. In the absence of that, I think the presumption and burden should shift to the former President to demonstrate that he did in fact declassify the materials in question before leaving office. I doubt there’s any actual precedent on that, of course, so it will be interesting to see how it plays out.

    6
  43. Modulo Myself says:

    @R. Dave:

    Jonathan Turley is going to go on Fox to explain that if you do something in your mind while president it is an official act. Furthermore, if you believe that you actually won the election, and are still president, you do not have to comply with the other president’s reclassification of a document.

    3
  44. R. Dave says:

    @Modulo Myself: Lol! Sadly, that’s probably pretty close to exactly what Turley and the rest are going to say.

    1
  45. Mikey says:

    @Andy: So if Trump waved his magic declassification wand over a box of documents marked TOP SECRET//ORCON/NOFORN and then nobody else does anything how do we know the documents are declassified? As far as I’m concerned those documents are still classified because none of the work necessary to memorialize the declassification has been done.

    4
  46. KM says:

    @Andy:
    And s/he need to TELL people that and it needs to be recorded, else no one will known de/classification happened. POTUS can’t just waive a hand and go “Thou art declassified” and expected everyone to just psychically get the memo. If it ain’t in writing, you can’t prove it happened and an ex-POTUS ain’t got no rights, particular to call do over if the FBI comes a-knockin’. Arguing about its classification status misses the forest for the trees – there should be nothing in his possession from his time as POTUS that isn’t legally his.

    The bare simple facts are he’s got something he shouldn’t have and didn’t hand it over when given the chance. The how’s and why’s don’t really matter so much as 2 years later, the man has things he is aware he shouldn’t and the law wants them back. A smart man would have handed it over ages ago, a smarter man not taken it all but hey, quibbles aside Trump’s got no problems using his sticky fingers to try and get ahead.

    6
  47. Jay L Gischer says:

    Let’s not go down the declassification rabbit hole too far. It can get pretty wonky. The crap Turley is spouting is going to sound pretty good to folks, even if its wrong.

    Meanwhile, those documents did not belong to him after he left office. As said above. It could be represented as stolen property. That would make him a thief.

    3
  48. Matt Bernius says:

    The NYT has released some reporting that, if verified, casts things in a different light:

    Subpoena Preceded Search Warrant in Push to Retrieve Material From Trump
    The Justice Department had previously sought the return of classified documents it believed might still be at Mar-a-Lago before it sent F.B.I. agents this week to look for them.
    https://www.nytimes.com/2022/08/11/us/politics/trump-fbi-subpoena.html

    3
  49. Flat Earth Luddite says:

    @CSK:

    Bwa ha ha hahahahahahahahaha. Sigh. As mentioned earlier, 100k out-of-work comedians are out of work, and he’s giving it away for free.

    Is it wrong of me to wish for “The Friars Club Roast of Donald Trump?”

    1
  50. Jen says:

    There is an “if a tree falls in the woods and no one is there to hear it does it make a sound” vibe to all of this discussion.

    Trump had the authority to declassify documents when he was president (and not a minute after). But if he never told anyone that he declassified those documents–and so, the classification stamps on them never changed–were they really declassified? At a minimum, the originating agency needs to change the classification markings. If not, no one knows if they are classified or not.

    Setting all of that aside, official documents, classified or not, should never have left the White House.

    4
  51. Jon says:

    @Matt Bernius:

    Some senior Republicans have been warned by allies of Mr. Trump not to continue to be aggressive in criticizing the Justice Department and the F.B.I. over the matter because it is possible that more damaging information about Mr. Trump related to the search will eventually become public.

    Boy howdy.

    3
  52. MarkedMan says:

    @charon: This really hasn’t gotten enough attention. When I saw it a couple of days ago, my head exploded but since then, hardly a mention in the media. Makes me wonder if it was inadequately fact checked.

    1
  53. OzarkHillbilly says:

    @Jon: You could just call yourself “Beelzebub,” that should solve the problem.

    1
  54. Jon says:

    @OzarkHillbilly: Ouch 😉

    Although it did remind me of the Dead Milkmen so now I’m listening to Beelzebubba for the first time in a while. Everybody wins!

  55. OzarkHillbilly says:
  56. OzarkHillbilly says:

    @OzarkHillbilly: Sorry, Wrong link. Shorter Garland: “trump has been fucking around and now everyone is going to find out.” about the warrant and what was taken in the search.

    2
  57. Gustopher says:

    Even if double-secret declassification were a thing (a claim that I doubt), by virtue of not recording it, wouldn’t such records immediately revert to their previous classification status as soon as the President left office? Absent any knowledge or legal authority to say that these things are declassified, all government entities would consider them to still be classified.

    And a former President cannot declassify, so he has no way of rectifying any erroneous accidental reclassification.

    (And, if we grant the doctrine of double-secret declassification, do we also grant the doctrine of double-secret reclassification? Through the act of seeking the documents as if they are classified, wouldn’t the power of the executive to alter classifications on a whim without telling anyone once again make the documents classified?)

    3
  58. charon says:
  59. charon says:
  60. Michael Reynolds says:

    Who thinks Trump will send his attorneys in to try and stop the unsealing?

    1
  61. charon says:

    https://twitter.com/rhonda_harbison/status/1557810946839646208

    MORE: The motion to unseal was signed by U.S. Attorney Juan Gonzalez and Jay Bratt, chief of DOJ’s counterintelligence section. DOJ is also moving to unseal a “redacted Property Receipt listing items seized pursuant to the search.”

    https://twitter.com/rhonda_harbison/status/1557810946839646208

    Counterintelligence. Trump be hurting.

    2
  62. Jen says:

    Interesting move to unseal the warrant and the receipt of what was removed.

    The attachments should list the applicable laws, so that will give some sense as to what they were looking for…if Trump’s lawyers don’t object to the unsealing.

    I do believe Garland just called Trump’s bluff.

    1
  63. DK says:

    But there’s no way in hell he’s charged with even an egregious mishandling of information he had a plenary right to handle as he saw fit.

    I’m sorry, who died and declared Donald Trump not just an absolute monarch, but an absolute monarch for life?

    A sitting American president does not have “a plenary right” to anything he wants with information. He cannot, for example, unilaterally decide to declassify and hand over state secrets to Iran.

    And regarding a guy who ceased to be president at noon on the day he stole classified documents from the White House, going on to destroy or illegally withhold said documents in defiance of formal requests and subpoenas, that former guy has whatever the opposite of “a plenary right” is.

    3
  64. OzarkHillbilly says:

    .@Michael Reynolds: Everybody.

    1
  65. Jen says:

    @Michael Reynolds: The motion to unseal the warrant specifies “absent objection by former President Trump.” Which is a nice touch, no?

    2
  66. CSK says:

    @OzarkHillbilly:
    Garland says he approved the search warrant for Mar-a-Lago.

    1
  67. Scott says:

    Besides the legal angle, I think Garland is addressing the attacks, political, verbal, and now possibly physical (Cincinnati) on the FBI, DoJ, and Judiciary. He was really angry which for Garland pretty rare.

    3
  68. Jen says:

    Popehat has the best take.

    2
  69. CSK says:

    @Scott F.:
    I think about the Trumpkins turning ultra-violent quite a bit. I’ve mentioned here my fear that if Trump dies of a stroke or a heart attack in the best hospital in Manhattan or Florida, attended by the world’s best doctors, the eruption of fury by the MAGAs against “the deep state” for arranging his assassination will be volcanic.

    Same if he’s arrested.

    2
  70. CSK says:

    Kimberley Guilfoyle is seconding Trump’s suggestion that the FBI bugged Mar-a-Lago.

  71. JohnSF says:

    Ooh, shiny thing!
    Perhaps just coincidence as to who was available at the office, but this just sent a tingle through my spidey sense:
    “The motion to unseal was signed by U.S. Attorney Juan Gonzalez and Jay Bratt, chief of DOJ’s counterintelligence section.”
    Counterintelligence, you say?
    Hmm…

    1
  72. Jen says:

    Asha Rangappa (former FBI) said something similar to this recently…that, as government employees members of the Secret Service have a duty to report criminal activity (I’m paraphrasing).

    Now also coming from a Fox News reporter.

    Very uncomfortable to be protecting the former President right now, I’ll bet.

    1
  73. Chip Daniels says:

    I bet money that Trump pulled a Michael Scott and declared the documents declassified by standing up straight, and in a loud voice, bellowed “I…Declare…These…DECLASSIFIED!”

    2
  74. Jay L Gischer says:

    Yeah, I am following this unfold with great interest, but I’m also exercising caution. I don’t want to get too far out over my skis, as it were.

    I am wondering though: If, as Jacqui Heinrich reports, this sort of warrant comes from either a wiretap or a source with specific information, there’s sort of an implication that whatever item we are talking about wasn’t just some collectors item. Something that was significant and is held as memorabilia, because it had to have been actively discussed or taken out on display somehow. I dunno, maybe it’s just “I’m gonna look at this cool picture of me in the cockpit of a classified secret aircraft” kind of deal.

    I’m trying to not get ahead of myself. Really trying.

    1
  75. charon says:

    @JohnSF:

    Jay Bratt, chief of DOJ’s counterintelligence section.”

    Bratt was part of the team that visited Mar-a-Lago in June requesting return of documents.

    BTW. John Solomon and Kash Patel are examples of the sort of people who Trump gives access to sensitive information to.

    1
  76. MarkedMan says:

    @Jay L Gischer: Hey, I say, get so far out over your skis up is down! How about this: why did the Saudis award Trump’s son in law an unbelievably lucrative contract for his startup business? And, just asking you see, how did the Saudis know exactly when Kashoggi was going to be in the Turkish embassy? And, totally unrelated question here, is Trump the kind of guy that if he was going to partner with someone on a dirty deal, even a family member, he would want to keep proof of the relative’s complicity stashed away somewhere in a safe?

    Just letting wonderful fantasies of Trump and Kushner both getting their just deserts flow through my brain…

    2
  77. Raoul says:

    To much ink has been spilled on this matter and so much of it is speculation so I post the following with great trepidation. Yes the president can declassify anything but if this is the defense it would be considered an affirmative defense for which Trump would bear the burden of proving it and I don’t think he can.

    2
  78. Jay L Gischer says:

    @MarkedMan: Yeah, my skeptical brain just keeps coming up with stuff like “counterintelligence is involved because they are always involved in cases involving classified information”. This just could end up being Trump’s petulant defiance over some goofy memorabilia. Not that it absolves him, but it won’t be big politically.

    1
  79. JohnSF says:

    @Jay L Gischer:
    The thing is, possibly the document(s) that they were very concern to retrieve were not necessarily the ones Trump was interested in.
    “About a dozen” boxes retrieved.

    Trump probably took a whole pile of stuff, of various levels of interest to himself and various other parties. Perhaps intending to look through them, sometime.
    For something specific?

    Who knows, bar maybe Trump himself, and that’s just maybe; he often seems to improvise more than plan.
    And quite likely, being stupid, and lazy, never got round to looking.
    And who would he delegate the job to?

    So, boxes just sit there, and some people in Washington are increasingly concerned, or discover, that there are some things there, that really shouldn’t go any further?
    Or sole copy of something important?

    This is all just guessology.
    But point is, proving Trump meant harm might be tricky, if it was just a needle in the whole haystack.
    Unless he’d been previously requested to hand it over?

    There is, if this scenario is anything like what happened, that even if the material that set off the alarm bell was potentially very important indeed, it may still never result in any charges, if it is now secured and there is no proof of misuse.

    And we might not find out the details of what it was; the warrant might deliberately obfuscate.
    And if is “Top Secret, burn self before reading” what would the legal implications be, if the contents are non-disclosable?

  80. Cheryl Rofer says:

    By and large, Jen is right about classification. It’s not a mysterious power to wave over a document that changes the mystical nature of the information contained. And it is the information that is classified, not the document, although we say in shorthand that the document is classified. Classification guides for nuclear weapons information list things like “That this material has this particular function in this nuclear weapon is Confidential/ Secret/ Top Secret.”

    Can the president share that information as they see appropriate? Yes, but that doesn’t declassify it.

    Think of the classification system as instructions on how to handle particular information and the documents that contain it. When a president classifies or declassifies that information, they are issuing instructions to the bureaucracy on how to handle it. So if the instructions aren’t issued, nothing has happened.

    6
  81. Just nutha ignint cracker says:

    @DK: Gee, while I prefer my Presidents to NOT hand declassified information to Iran, as a practical matter if Biden (I’m tired of using FG in these hypotheticals) were to do such, the recourse available would be to impeach and convict him. Whether that would happen would be subject to the winds of politics.

    So yeah FG actually COULD do what you suggested. Just like the law doesn’t stop Cracker from pulling the trigger, it only punishes him afterward.

  82. Just nutha ignint cracker says:

    @Just nutha ignint cracker: Sentence one above should read “classified” not “declassified.”

  83. MarkedMan says:

    @JohnSF: Remember, they got a warrant to drill his safe.

  84. Jax says:

    @MarkedMan: Cough cough….he apparently means his closet. I’m not sure how big his safe is, but 10 standard-sized boxes of classified material is much larger than a standard safe. 😛

  85. Ken_L says:

    Contracts can be held void for uncertainty. Does administrative law similarly hold that orders are void for uncertainty if they lack precision? I remember Trump declaring just before he left office that he’d declassified all the records relating to the Russia hoax. Surely that was far too vague to have any lawful effect. Similarly, asserting he’d classified or declassified all the information held in boxes at Mar-a-Lago, without setting out what that information was, would be impossible either to understand or apply in practice.

    It seems to me that he can run the “I declassified them all” defence in the media, and his party will cheer him on. But if and when he has to give sworn testimony, I imagine he’d quickly be shown up as a blustering fool incapable of explaining in respect of any particular document marked classified whether or not he’d ever declassified it, and if so, when and how.

  86. Jax says:

    Just imagine how pissed John430, JKB and “their ilk” will be if Biden takes off with 20+ boxes of classified material on January 20, 2024.

    2
  87. JohnSF says:

    @MarkedMan:
    Need to see the warrant terms.
    Could be just a general permission to “search all places where they had cause” or something along those lines.
    If they are searching for highly classified material, the safe is a reasonable place to want to check.

    And thinking about it, if something was in the safe, Trump could claim it showed he was not leaving sensitive material lying around.

    I’m just playing amateur devil’s advocate here.
    IANAL in general, and IANAAFL in particular, but suspect requirements for proof, and the problems of evidencing sensitive materials (and sources?) may mean it does not go much further.

    Another thought: I wonder how may foreign TLA’s have agents or operatives among the staff or membership at Mar-a-Lago?

    Possible answer: “ALL of them!” 🙂

  88. Andy says:

    @R. Dave:

    The process and recordkeeping that goes with it provide the necessary evidence of the declassification. In the absence of that, I think the presumption and burden should shift to the former President to demonstrate that he did in fact declassify the materials in question before leaving office. I doubt there’s any actual precedent on that, of course, so it will be interesting to see how it plays out.

    In the court of public opinion, I think that’s true. But it seems to me that in a criminal matter, the burden is always on the prosecution.

    @Mikey:

    So if Trump waved his magic declassification wand over a box of documents marked TOP SECRET//ORCON/NOFORN and then nobody else does anything how do we know the documents are declassified? As far as I’m concerned those documents are still classified because none of the work necessary to memorialize the declassification has been done.

    Documents with classified markings are supposed to be treated as classified whether they are or not.

    Plenary power gives Presidents the authority to do a lot of weird things. For example, a President can publicly release information, but still keep it technically classified.

    What you often see is that WH officials will officially but unofficially leak classified information to the press. Every President has done this and of course there are many unsanctioned leaks that Presidents try to quash.

    @KM:

    And s/he need to TELL people that and it needs to be recorded, else no one will known de/classification happened. POTUS can’t just waive a hand and go “Thou art declassified” and expected everyone to just psychically get the memo.

    Says who? What – specifically – requires the President to do this?

    Now, doing that is very bad and problematic for a whole hose of reasons, and I agree that the logic of it is perverse, and doing that (or claiming to have done that) warrants a lot of criticism and opprobrium. But I don’t see much basis to think it is a crime, much less one that can be proven beyond a reasonable doubt.

    This is one of the dangers of plenary power given to a single officeholder. The penalties for abusing that power are usually political and not criminal.

  89. Andy says:

    @DK:

    A sitting American president does not have “a plenary right” to anything he wants with information. He cannot, for example, unilaterally decide to declassify and hand over state secrets to Iran.

    Sorry, but that is completely incorrect. If a President did that, they could be impeached, but they do have the authority to give state secrets to Iran or any other government, and every President has given state secrets to foreign governments while at the same time keeping them classified and hidden from the American people. This is how it has always worked.

    You may be surprised, but the US and Iran do, on rare occasions, cooperate on certain matters and share information, albeit in very limited and focused ways.

  90. Trayton Jay says:

    The interview already seems to be aging poorly in some of the assumptions. As example, the Warrant has been made public, and it does not give the detail suggested as being intentionally withheld by the Orange Team.

  91. DK says:

    @Andy: Carter Page esque half truths, per usual.

    The president’s declassification powers are awesome, but they not unlimited and do not apply to state secrets that are born state secrets — like the identity of spies — or pursuant to the Atomic Energy Acts of 1946 and 1954, nuclear secrets. Saying a president “can” disclose this information is as dishonest as saying a person “can” commit premeditated murder. Yeah, they can, as in they have the ability. But no, they are not allowed.

    You may be surprised, but having (allegedly) been an intel analyst once back in the day doesn’t mean you know everything and are always right. So you don’t need to say “sorry” to me, say “sorry” to yourself.

    2