The Presidential Records Act, passed in 1978, addresses the subject of personal and presidential records [1]. Here are two papers from the Congressional Research Service discussing that law which you can view or download for reading–
http://crsreports.congress.gov/product/pdf/R/R40238
http://crsreports.congress.gov/product/pdf/R/R46129
The authority for a president to classify and declassify information is from the constitution [2]–
“The President, after all, is the ‘Commander in Chief of the Army and Navy of the United States.’ U. S. Const., Art. II, section 2. His authority to classify and control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position in the Executive Branch that will give that person access to such information flows primarily from this constitutional investment of power in the President and exists quite apart from any explicit congressional grant”.
This presidential power raises some obvious questions. What are the physical acts, if any, that a president is to do in order to make a document, item, or information classified or declassified? Is an oral statement enough? Is a memo saying that some items and information are now declassified enough? Does walking out of the White House with the document mean that it is now declassified? Is putting the document on a table in a restaurant or bar mean it is now declassified? Is a new executive order required? Could some things be classified or declassified automatically in certain situations without the president doing anything? If Congress passes a law making something classified (which a president certainly can have access to), what is the interplay between the president’s constitutional power to declassify and a designation of secret by Congress?
An executive order (EO) is the president giving an order to other persons in the executive branch of government. The current one on classified national security information is EO 13526, signed by former president Barack Obama on 29 December 2009. It replaced EO 12958 by Bill Clinton and EO 13292 by George W. Bush, and was not amended or revoked by Trump.
Since the executive order comes from a president, it does not reduce the president’s constitutional authority regarding classified information. Nor does section 1.6(h) of EO 13526, which says that “prior to public release”, all declassified records shall be appropriately marked to show that they are declassified.
The DOJ’s second property inventory from the search of Trump’s residence that was a little more detailed than the first one uses the term “Classification Markings” about some seized items. This is a cautious description acknowledging that the items may or may not be classified.
An important part of EO 13526 is section 1.7(a). I am surprised that it is not regularly used by journalists, whistleblowers, broadcasters, writers, and persons charged with a crime about classified information, although I might be unaware that it has been–
“Sec. 1.7. Classification Prohibitions and Limitations.
(a) In no case shall information be classified, continue to be maintained as classified, or fail to be declassified in order to:
(1) conceal violations of law, inefficiency, or administrative error;
(2) prevent embarrassment to a person, organization, or agency;
(3) restrain competition; or
(4) prevent or delay the release of information that does not require protection in the interest of the national security.”
Think about it. If you are a reporter, writer, whistleblower, or an accused person, that is some pretty sweet language that information cannot be classified in order to: “conceal violations of law, inefficiency, or administrative error; or, prevent embarassment to a person, organization, or agency; or, prevent or delay the release of information that does not require protection in the interest of the national security”.
I think that the Presidential Records Act and the issues about whether something is classified or not will play a major role in the civil lawsuit about a special master and the use and return of property, and also in a criminal prosecution if there is one. This material can give you some added understanding of them.
[1] Title 44, Chapter 22, sections 2201-2209. Presidential Records.
http://uscode.house.gov/view.xhtml?path=/prelim@title44/chapter22&edition=prelim
[2] From page 527 in the U.S. Supreme Court decision called Department of the Navy vs. Egan, 484 U.S. 518 (1988).
[3] Executive Order 13526. Classified National Security Information.
http://www.govinfo.gov/content/pkg/FR-2010-01-05/pdf/E9-31418.pdf
Then there is this, as more conspiracies flicker out:
NY TIMES: Durham Inquiry Appears to Wind Down as Grand Jury Expires
“WASHINGTON — When John Durham was assigned by the Justice Department in 2019 to examine the origins of the investigation into the 2016 Trump campaign’s ties to Russia, President Donald Trump and his supporters expressed a belief that the inquiry would prove that a “deep state” conspiracy including top Obama-era officials had worked to sabotage him.
Now Durham appears to be winding down his three-year inquiry without anything close to the results Trump was seeking. The grand jury that Durham has recently used to hear evidence has expired, and while he could convene another, there are currently no plans to do so, three people familiar with the matter said.”
Three years and ONLY a low level DOJ attorney nailed for altering an email, that had no real substance to the allegations. A DEEP FIZZ to finding the “Deep State” that had been promised daily over FAUX NEWS.
Al,
“DOJ attorney nailed for altering an email”
When the government fabricates evidence it is A OK. Or, as Biden put it in his Red speech: “Democracy!”
Durham did let us all know that the FBI succeeded in putting Danshenko on the payroll to keep him out of the public and prosecutorial eye. Nothing like paying off a blackmailer by giving him a government job.
AI Durham is not winding down at all (IMO); there is the Danchhenko pretrial at the moment.. It was revealed (I want to say yesterday) that Danchemko was a PAID FBI informant and (those of us following it learned a couple days ago) that part of Danchenko’s defense is going to be that the FBI KNEW at the time that the Steele Dossier was not factual/was untrue aka: False… the trial is set for October…
This does not seem like winding down to me at all… but interesting to see the NYT opinion…
and Willman – sorry to comment on an unrelated topic –
My understanding for the Mara-Lago Raid is that Trump had a Standing Order for declassification of anything he took to his residence for work or study.. I DO notice that none of it was available to the general public until the FBI ‘leaked’ that ‘photo’ all over the internet… All former presidents, (like it nor not), have access to the records from their time in office – from what I understand..
All Presidents write books and use their papers for corroboration.
Why would Trump release his good stuff now, that he declassified, and ahead of publication. Particularly with good reason, he knew the Deep State would deep six it as soon as they got their hands on it.
All they had to say was: Mr President, could you please draw a mark across all the formerly marked classified documents that you declassified Thank you, and have a good day.
The raid on Trump’s home, and the Durham fake, have nothing to do with either justice or law. This is the continued socialist cabal that has “captured” the FIB and the DOIJ and is using them, a’la Stalin” to arrest Trump and frighten any one who sympathizes w/Trump. Expect the CDIA to provide “secret” information and the propaganda press to publish it to the masses. Really, wouldn’t it be easier on all of us if we’d just comply?
KjH, former Presidents have access to govt docs thru the Archives. Not via unilateral takings. Obama/Bush/Clinton have gone thru Arvhives.
Trump even signed into law violation of Archives raising penalties from misdeamor to felony. He has his own egomania to blame.
Al,
” former Presidents have access to govt docs thru the Archives.”
Thank goodness someone understands the law. Now there are those who think the Constitution vests all the executive branch powers in the President; and that while serving as President that individual can designate items to include documents, the later which he being the sole authority vested with Constitutional power can classify – or declassify, as “personal” and thus they would not be subject to control by the ‘Archivist’. Unfortunately the Christine Beasley Ford wannabe (soon to be handsomely rewarded no doubt) serving as archivist now pretends not to understand that key fact. It does provide some hopium to the elect. “Walls are closing in! We got him – this time!” and so on. Enjoy the show. It certainly helps take ones the mind off the economy.
If it takes a fishing expedition to create a crime in order to construct a claim of “obstruction of justice”, I’d say the government yet again has very weak case under the law.
However, that same set of facts does show the DOJ has an exceptionally rabid case of TDS.
AI – My understanding is this is a civil (court) case
Willmann – I am doing a much deeper dive into reading on this than I expected- thanks for the good links – you are right – this will be very interesting…
KjH.
It is a CRIMINAL case! Obstruction of justice just one of allegations in the affidavit.
Al,
You really believe that? If it was they would not have taken medical records, passports, and thousands of other items. That’s way beyond ‘too broad’ of a search that gets everything taken under these warrants thrown out of court. This is a political fishing expedition to cover for the pending disaster of the mid-terms and was never more than that. On related “don’t look here” news:
“Charles McGonigal, the former head of counterintelligence at the FBI field office in New York City who was involved in the investigation into the Trump campaign’s contacts with Russia during the 2016 election, has fallen under the scrutiny of a grand jury convened by U.S. attorneys late last year for his own ties with Russia and other foreign governments…”
https://thecrimereport.org/2022/09/15/former-fbi-investigator-under-scrutiny-for-ties-to-russian-oligarch/
AI – Regarding a potential case against Trump = Ya I DO believe that the DC-DOJ will try to charge Trump with ‘something’
Usually, paperwork cases are CIVIL cases – usually
There are currently two Grand Juries in DC – one is a J/6 GJ and the other has to do with records – that one is a little convoluted – (IMO).
KEEP IN MIND HERE – TRUMP HAS NOT BEEN CHARGED WITH ANY CRIME – so these are not at this point criminal cases . Some Grand Juries are for Civil cases – most GJ’s are for recommending indictments to a prosecutor who then starts a criminal case..
I did not get to see a non-redacted Affidavit – maybe you did?
Now – if they ARE listing OBJ charge as you mention (above) then that would be for the J/6 Grand Jury this raid – seems a conflict (or cooperation with the J/6 GJ -which would be also be a ‘No-No” Since Grand Juries are supposed to operate independently/ ie: no collusion) since the Archivist is the one saying they need access to records this Mar-A-Lago raid has to be for the Archivist. The farther this goes the less clear-minded the DC-DOJ looks in all this…
Now… onto another very interesting question I have about this Mar-A-Lago Raid – WHY did they wait 20 months? (Remember Trump had Archivists – or feds- in to Mar-A-Lago to inspect the storage?) Ya – strange –
SO here is another interesting thing -the Archive Act – allows Presidents and former Presidents and Vice Presidents and Former Vice to HAVE ACCESS to any of their documents related to their presidency/vice presidency. There will not be arguments in court about that…
I believe Any Presidential Cabinet members also have access to their records related to their time in Cabinet positions…
The US President has special treatment and past US Presidents HAVE had special treatment with regard to Archive records…
A case against Trump about records keeping would represent a change in legal precedent. That change in precedent would put a few people at risk.
Does the Secretary of State have special treatment? (not sure) The 20 month wait to raid Mar-A-Lago puts Hillary past a Statute of Limitations for her records issues (Ya I know the FBI-HEAD HONCHO gave her a pass but a case could still have been made against her…until NOW) .. It would explain the 20 month wait neatly wouldn’t it?
Obama has millions of records in an old warehouse in Chicago; He got a pass from the Archive for storing those records in the (SAFE) city of Chicago and he, is NOT past a statute of limitations so… that is also interesting..
Thing is – no US President has ever been criminally charged under the Archive act only one person (I know of off the top of my head) that was charged was a corrupt Secretary of War and that was in the 1800’s want to say after the US Civil War?) SO IF Trump were charged with any crime here he would be the FIRST US President charged with anything relating to archives…
I have more interesting questions regarding this and that is about Archives altering records – and YES Archivists HAVE altered records in the past… Archivists can also DESTROY records for many reasons..
Now, If I were an Archivist and wanted to ALTER records I would have to get all the COPIES called back wouldn’t I? (Ya – that is where my next interesting question goes)
KEEP IN MIND – no one, not even favored past Presidents get to take ORIGINALS out of the Archive – they are all copies and due to special designations (Classifications) those documents are all supposed to be tracked (by the Archive) so they should have already known what Trump had..
Because Grand Juries are supposed to be kept from the public until they make a recommendation we, (the Public), will not know much for a while… unless there are leaks… and then the leakers only give bits and pieces…
What I am most interested to see is WHO ordered this raid and WHY? This needs to be researched all the way to the top.
The more I look into this the more questions I have.
@Willmann – thanks for a good post – lots to look into
Gone are the days of Seymour Hersh but not quite. It’s quite possible that Trump has information of a very sensitive nature in document form. It’s also just barely possible that the most sensitive things evade all US and allied intelligence and even the informal high society networks that immensely wealthy Trump, trained by Roy Cohn, had and has access to. A doubting Thomas might think the claim “an ally’s nuclear secrets” is misdirection. Ally’s. All y s. All wise. All whys. All lies. But where are deoxyribonucleic acid strands found, in the doggy pound? Or Wry Bo, and Why Po and Sly Tho?
My Name is Benjamin Jowett.
All there’s to know I know it.
What I don’t know isn’t knowledge.
Because I’m Master of Baillol College.
That was a word to then and still unwise me when I became too thrilled over my readings of The Dialogues of Plato translated by Benjamin Jowett.
What a shame that our previous president turned out to be a bit of an impetuous and very selfish klutz, if the expression can be forgiven. Like many people who seem awful and associate with the worst of the worst, to do ..
So if indeed he did have some vitally important information squirreled away, it’s not likely to see daylight.
The stolen papers belong to we the people, not King Donald. The unanswered question is why did trump steal these documents in the first place, and why did he lie about returning them, thus forcing the Justice Department to intervene.
What was trump planning to do with this highly classified information?
Can you imagine the rightist outrage if the last name of the perpetrator was Clinton or Biden, rather than their cult leader Trump? They would be spinning all sorts of crackpot conspiracy theories.
Rather than trying to get to the truth, the rightists prefer to deflect by obsessing on the “deep state” hoax, the “stolen election” hoax, and the Hunter Biden laptop hoax.
I would have to see the material to judge how sensitive it really is. Many classified docs are ridiculously over classified.
Col, The issue of classification level is of concern. But the basic issue is that the docs are govt property and Trump had no legitimate legal right to take them.
It will be interesting to eventually see/learn what was on the video tapes obtained via court order following the June meeting. The Feds were assured that the stored boxes were secured in one location. The video led the Feds to Trump’s office? Time will tell.
Al
C’mon man, how about spoons from the WH silver chest? Maybe he took a few for souvenirs? He could be indicted for that too. A great deal of material is classified by clerical level action when it is basically something you could use to wipe your butt. I do not like DJT as a person. I find this type of businessman repulsive although I liked his policies, still do. IMO he should not run again but fair is fair.
David,
Yes, my first thought when this news broke was “what if Obama had done this”. It would be the end of the world. I still consider myself a Trump supporter because I believe that the machinations of the vast forces arrayed against him are of a greater danger to the republic than anything that Trump has ever done or can do. But I never bought any of the stolen election stuff, except for Trump’s failure in preventing mail in voting- without the massive mail in voting I do not believe he would have lost.
“..Hunter Biden laptop hoax.”
Lol! Yeah, Hunter didn’t have no laptop.
Attorney General Bill Barr appointed attorney John Durham in December 2020 to look into the origins of the DOJ/FBI investigation of Russia’s meddling in the 2016 election, Donald Trump insisted that the probe would uncover widespread wrongdoing by Hillary Clinton and Democrats. “What they did was so illegal, at a level that you’ve rarely seen before,” Trump stated with scorn.
The Fox viewers ate this BS up for breakfast, lunch, dinner, and even late night snacks. They were fully sure that the evil workings of Obama, H Clinton, and assorted “Deep Staters” would be exposed!
But, but, but, after 3 yrs, just 3 relatively minor prosecutions:
1) a low level DOJ staff forwarded an altered email. Which the Inspec Gen investigation found not of a substantial matter in the overall DOJ investigation. Found guilty for the alteration.
2) A lawyer was prosecuted for not clearly stating his representation to the Clinton Campaign. Jury basically laughed that out of court with a NOT guilty decision
3) A pending prosecution of the Russian spy who alleged to Steele that Trump had a sexual romp in Russian Hotel. This has very little to do with the overall Steele raw intelligence that Russia indeed sought to get Trump elected.
As former US Vice President John Nance Garner once stated, “Not worth a bucket of warm piss!”
Nothing! Nothing at all in the 3 yrs of Durham’s investigation has led to finding that Trump was a victim of “Deep State” plots within the Obama administration or anywhere else!
In fact, the basic “raw” intelligence that Steele brought forth was that Putin’s Russia plotted against H. Clinton in favor of Trump. Such was substantiated by the REPUBLICAN Chaired Senate Intelligence Committee Rather, it was a “Russian ‘Deep State'” interfering in the US 2016 Presidential Election!.
Now in reality what has been in cast established is truly ironic: That it was the “Deep State” of the Russian political organization plotting FOR Trump!
Al,
That’s called fabricating evidence. Clinesmith was not tried and found guilty, he cut a deal and plead guilty. The Russian agent part of the ” pending prosecution of the Russian” has everything to do with the fraudulent RUSSIA COLLUSION story and investigations that were utilized for years to stop the Trump admistration from succeeding in what they were elected to do. Danshenko was PAID by the FBI for more than 3 years -when they knew his information was fraudulent. By all means keep repeating the rest because we would hate for people to think about what Democrats are doing to the economy, to public schools, or the streets of America’s cities.
The Deep State is Pro-Trump! LOL “Keep Hope Alive” as Jesse Jackson used to say. But please don’t think about the economy.
Durham was appointed to bury the machinations at the FBI & DOJ. Danchencko who played a key role as the source providing the fabrications for the Steele Dossier was a made a “confidential human source” by the FBI. The FBI & DOJ knew that the Steele Dossier was a fabrication yet they pushed ahead with false affidavits to the FISA court and used that investigation to push innuendo to the complicit media that ultimately led to the Mueller special counsel packed with anti-Trumpers like Weissman.
The fact that so many folks who hate Trump don’t want to call out the attempted coup of a duly elected president says a lot. It will be interesting to see the whining when the tables get turned.
The DoJ = The Department of Just Us.