He has Article II. He can do whatever he wants, as Trump once infamously said. His authoritarian essence has always been on open display. Indeed, it’s assumed now, and one of the single biggest dangers this nation faces as it goes forward toward 2024. On May 10th of this year, the National Archives sent Trump a letter stating the applicable law regarding the proper ownership of presidential records and the danger of holding classified Top Secret documents. Now, according to a newly unsealed letter dated May 25th of this year, we learn that Trump didn’t respond by proposing that a third party hold the documents while a judge resolved the matter (a responsible proposal). Trump argued that he was above the law. He was president, after all.
According to the Associated Press:
A newly unsealed FBI document about the investigation at Mar-a-Lago not only offers new details about the probe but also reveals clues about the arguments former President Donald Trump’s legal team intends to make.
A May 25 letter from one of his lawyers, attached as an exhibit to the search affidavit, advances a broad view of presidential power, asserting that the commander-in-chief has absolute authority to declassify whatever he wants — and also that the “primary” law governing the handling of U.S. classified information simply doesn’t apply to the president himself.
The argument is, of course, absurd. It is true that the president can declassify documents, but it must be done through a process that actually informs people that the document is now declassified. Additionally, if Trump honestly believed he had the right to take these documents, the proper procedure would be to inform the National Archives as he was leaving or at least shortly afterward. Last, in case Trump hasn’t noticed, he is no longer president, and those documents are not personal to him. If the current president wants and needs them back, the current president is the one with the authority to oversee the documents and can re-classify them as fast as Trump maintains that he declassified them. The National Archives letter set out the law with impeccable clarity. Trump’s response is basically an assertion that he has Article II and can do what he wants. Again.
The statute the letter cites, though, is not among the three that the search warrant lists as being part of the investigation. And the Espionage Act law at issue concerns “national defense” information rather than “classified,” suggesting it may be irrelevant whether the records were declassified or not.
It was always irrelevant whether documents were classified or not. The Presidential Records Act prohibits the destruction or taking of any and all records, which explains why Trump’s staff had to tape records back together and explains why Trump resorted to flushing documents down the toilet.
Trump knows he is facing real trouble. As the AP article notes, a former NSA employee received a nine-year prison sentence for storing two decades of classified materials in his home. There were no accusations that the NSA employee held those records for any nefarious purpose, something still under investigation by the FBI.
Trump’s precarious legal position explains why he is trying to win this battle through threats of violence of the type delivered by Lindsey Graham while also trying to split the FBI itself by asking that “good agents” revolt against the leadership. People who believe that they have a good faith legal argument don’t make such threats or statements. They file memorandums in court without panicking.
@JasonMiciak believes a day without learning is a day not lived. He is a political writer, features writer, author, and attorney. He is a Canadian-born dual citizen who spent his teen and college years in the Pacific Northwest and has since lived in seven states. He now enjoys life as a single dad of a young girl, writing from the beaches of the Gulf Coast. He loves crafting his flower pots, cooking, and currently studies philosophy of science, religion, and non-math principles behind quantum mechanics and cosmology. Please feel free to contact for speaking engagements or any concerns.
