January 25, 2023 Francis Menton @ Manhattan Contrarian
I have so far avoided weighing in on the Biden and Trump classified documents scandals, but I guess the time has finally come.
I’ve had a “Secret” clearance in my life, and almost all of the “classified” documents I have seen have been of very underwhelming significance. So when the Trump classified document thing blew up with the FBI raid of Mar-a-Lago back in August, I was not impressed. It reeked of something highly likely to be completely devoid of real world significance, but useful to Biden and the left because Trump would be put in a position of not being able to defend himself publicly without disclosing the contents of the documents. Meanwhile Trump as President had had complete authority to declassify the documents if he wanted, and his position was that he had done so. But even if Trump had a good or even excellent position that he had declassified the documents, he would not take the risk of disclosing their contents to defend himself. So it seemed like a total freebie for Biden to go on 60 Minutes in September and say “How could anyone be that irresponsible?”
Here is the picture that the Justice Department filed in court of the classified documents found at Mar-a-Lago:
Then on January 9 CBS News broke the story that a cache of classified documents had been discovered in a closet at Biden’s office at the “Penn Biden Center” in Washington, a supposed “think tank” funded by the University of Pennsylvania. Oops. “How could anyone be that irresponsible?”
This was not going to be an easy one to spin. But within a couple of days, the official talking point had emerged, as it always seems to do for the far left press. The official talking point was, this is different because Biden is “cooperating” with the government, whereas Trump was “resisting” the righteous efforts of the National Archives to get back the documents to which they are entitled and which only they can safeguard appropriately.
Examples of the official talking point:
From The New York Times, January 12:
“Mr. Trump and his aides resisted the government’s repeated efforts to retrieve them all [i.e., the classified documents]. Mr. Biden’s lawyers reported the problem, and the White House says it has fully cooperated.”
U.S. News, January 17: “One president had to be hounded for government documents, including classified material that was only retrieved after the FBI executed a search warrant at his home. . . . The other president voluntarily turned over documents – including classified material – after his lawyers discovered them in his non-White House office and home, and is cooperating with the Department of Justice.”
AP, January 14: “After the materials were discovered at the think tank, Biden’s personal attorneys immediately alerted the White House counsel’s office, which notified NARA, which took custody of the documents the next day, Sauber said. . . . In August 2022, FBI agents conducting a search retrieved 33 boxes from Mar-a-Lago. The search came after lawyers for Trump provided a sworn certification that all government records had been returned.”
There are easily several dozen more like these repeating the same talking point, if you should care to look around.
So, now that another week plus has passed, how is that talking point standing up? I want to look at two aspects in particular:
(1) Do the facts support that Biden was “fully cooperating” with respect to this likely criminal matter involving him? and
(2) Does Trump have a reasonable position that documents in his possession with classified “markings” had been declassified?
Biden’s Supposed “Cooperation” and “Self-Reporting”
As more details of the facts come out day by day, this talking point has completely fallen apart, and indeed appears completely ridiculous at this point. A good roundup of the latest facts appeared this morning in The Hill, written by Andrew McCarthy. Here’s the gist: the timeline shows that Biden was in fact not “self-reporting” at all, but rather was doing everything in his power to cover up and bury the story by having his lawyers deal only with what he had every reason to believe were his partisan allies at the National Archives. The strategy was successful in keeping the story buried well past the election in November, and all the way to January, and thus it only came out when somebody gave it to CBS News in January. Notice that I say the information was “given” rather than “leaked,” because this is not an improper “leak” of confidential information, but rather a reporting to the press of information that the public has an absolute right to know.
Some of the highlights:
1) First, how did Biden’s lawyers just happen to be looking through the documents at the Penn Biden Center a few weeks after the Mar-a-Lago raid and 60 Minutes interview? Nobody pays lawyers $500-1000 per hour to go through documents to close an office, unless there is real reason to believe there may be a serious problem. Clearly Biden knew he had a problem. And he had known for a long time. But he thought, probably rightly, that if ever discovered he could easily get away with it just as Hillary Clinton had gotten away with the same thing, because his allies in the press would cover for him. But after the 60 Minutes interview he got the idea that he should pay attention to the issue and try to bury it.
2) When the lawyers found some classified documents at the Penn Biden Center, did they then report it to the Justice Department or other law enforcement? Absolutely not. They reported to the White House. And the White House reported it to — the National Archives. McCarthy: “To ‘self-report’ a crime, a person needs to report it to law enforcement authorities. Biden and his aides absolutely did not do that. Moreover, a close look at the timeline elucidates that the White House hoped this issue would slip quietly into a black hole, with no publicity and no criminal investigation.”
3) The White House had every reason to believe that the people at the National Archives were their partisan friends who would then bury the story so that it would not see the light of day. McCarthy: “NARA’s leadership, under acting archivist Debra Steidel Wall, has worked closely with the Biden administration. When former President Trump tried to assert executive privilege over government records he had retained at Mar-a-Lago, it was up to Biden — under the Presidential Records Act — to decide whether to support that claim. Politically, though, Biden did not want to be seen as participating in an investigation of his rival. To help him out of that pickle, Wall issued an edict rejecting Trump’s privilege claim, as if she had made the decision about a presidential privilege that only Biden had legal authority to make.”
4) The information did then get reported to the Justice Department, but by whom? McCarthy again: “So, who reported the matter to law enforcement? That was done by the office of NARA’s inspector general, Dr. Brett M. Baker. The IG . . . is a watchdog position, created by Congress to keep the agency on the straight and narrow by conducting internal investigations and reporting misconduct to Congress.”
And then the information got to CBS News on January 9. Who was the source for that? McCarthy does not give an answer. The likely answer is Dr. Baker or someone in his IG office at the National Archives. In other words, Biden and his people had done everything they could think of to keep the story buried. Likely one honest person in the government, probably in the IG’s office, couldn’t stand what was going on and broke the code of silence.
Trump’s Position as to Declassification
While the progressive press talking point has been that Biden “cooperated” while Trump “resisted,” meanwhile there is another distinction between the Trump and Biden situations, this one real: Trump had the ability to declassify any and all documents by his own act while he was President. Biden did not have a comparable right by virtue of his office, and therefore would have had to go through prescribed procedures to declassify documents. Biden in his defense has not suggested that he ever did so, so my presumption is therefore that he did not.
But how about Trump — does he have a reasonable position that he declassified the documents at issue? Absolutely.
First, the whole business of government secrecy and classified documents exists solely for the benefit of the President. He has plenary authority to deal with classified information as he sees fit, by virtue of the fact that “all executive powers” are vested in him under Article II, Section 1 of the Constitution,
But suppose that Congress has prescribed declassification procedures by statute. Well, it turns out that they have not. Instead, the operative declassification procedures are set forth in Executive Orders that have been issued by various Presidents over time.
Here is a legal memo on the situation on declassification that was put out by the Brennan Center on October 6, 2022. You may recognize the Brennan Center as a progressive advocacy group and an arm of the NYU Law School that specializes in desecrating the legacy of its namesake Supreme Court Justice by, most famously, advocating for suppression of political speech via campaign finance laws. The October 6 date of this particular memo comes after the Mar-a-Lago raid and after the Biden 60 Minutes interview, but well before the disclosure of Biden’s own classified document problem.
The Brennan Center memo points out the lack of any statute specifying declassification procedures, and states that during the Trump administration, the most recent edict setting forth procedures for declassification was an Executive Order, number 13526, issued by President Obama on December 29, 2009. Apparently, Trump never formally revoked or rescinded that Executive Order. That may well mean that the EO remained effective as to all Executive Branch personnel other than the President himself. But a President is under absolutely no obligation to follow or obey the Executive Orders of his predecessors. Indeed you might say that the whole idea of electing a new President is that he gets to set and follow new policies and procedures that his predecessor may well have disagreed with.
As far as I can find, Trump has not claimed that he ever actually issued any written document or order stating that the documents he took to Mar-a-Lago were hereby declassified. On the other hand, there does not appear to be any statutory or other legally binding provision setting forth any specific procedures that a President must follow to declassify.
So, could President Trump have declassified the documents just by having the thought that they were declassified, without even telling anyone? The Brennan Center memo addresses that issue:
One thing the president cannot do, though, is declassify information “by thinking about it” — i.e., without communicating that decision to anyone else. This conclusion follows not from any particular legal requirements but rather from the very essence of what it means to classify or declassify information. As noted above, these are two-step processes: first, an official determines whether the information requires protection, and second, the information is flagged to ensure that the protections are applied or removed. If an official claims to have classified or declassified information after taking the first step but not the second, it’s like a customer saying she ordered food at a restaurant when she has decided what she wants to eat but hasn’t told the waiter.
Do you notice anything missing from that legal argument? Two obvious things that are missing are (1) citation to precedent, and (2) citation to statutory authority. In this case neither exists. Oh, and they also admit that there are no “particular legal requirements” that preclude declassification by mere thought of the President. In other words, the argument above is just the say so of the Brennan Center as partisan hacks explaining why they think without any particular basis that Trump should get nailed.
To their credit, the Brennan Center people also mention that the Justice Department, back in the George W. Bush administration, took the position that a President did not have any obligation to adhere to EO’s of his predecessors and could “waive” or “modify” those by conduct without having to write anything down or tell anybody:
During the administration of President George W. Bush, the Department of Justice issued a secret legal memorandum opining that presidents need not adhere to executive orders and that if they do not comply with an executive order, they have simply “waived” or “modified” it through their actions. Moreover, according to the memorandum, the public need not be notified of the waiver/modification. When the gist of the memorandum became public . . . it came under heavy criticism, but there is no public indication that it has been withdrawn.
So, bottom line: You may or may not agree that it is right, but Trump does have a colorable position that he could declassify documents by the very act of taking them to Mar-a-Lago. And even if he didn’t have an ability that goes quite that far, he could clearly have declassified the documents by scribbling on the back of a napkin the words “anything I take to Mar-a-Lago is hereby declassified,” and handing that to an aide. So, even if he should have done that and didn’t, his wrong is a matter of a slight procedural technicality,
Biden, on the other hand, has committed clear and undeniable criminal acts. We all await the next round of official talking points in his defense.
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