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Notes -
I generally believe incompetence over maliciousness.
What's more likely?
An impulsive braggart with a tendency to think he can do anything grabbed some docs as personal trophies or to win arguments?
Or...
Trump normally keeps stacked up boxes of documents in bathrooms and the FBI throws in cover sheets to make Trump look guilty? And the judge is going to accept they they are classified based on this cover sheet and not check? Oh, and also they trick Trump into saying these exact words?
The later. That's what actually happened, after all, and is consistent with years of prior leaks from the FBI and associated probes pursued for political harm, whereas there is no allegation that Donald Trump used those classified documents to try and win arguments.
Stacks of boxes in odd places is pretty normal. It was a minor- and not prosecuted- reoccurance of both former VP Pence and former VP Biden that they both were found to have boxes of classified documents in their domiciles well after their departures. In Biden's case, they were found being kept in a garage.
Further, there was no practical reason to put classified cover sheets over the documents in question for the purpose of an evidentiary photo. The cover sheet has no evidentiary power in and of itself- it could be any document behind it, so you'd need to take photos sans cover sheet anyways, and if you're doing that you'd need to have a camera and photo-storage planned for the relevant classified level anyway.
The cover sheets were brought for a photo that could be shared without itself being a disclosure incident, the documents were staged for the photo, and the photo was presented publicly and presented in a way to insinuate that the cover sheets had been there from the start. (Which itself was furthered by a major media outlet coincidentally being at Mar-a-Lago for the dawn document raid to report it as it happened.)
The nature of Presidential classification authority is that there is nothing to check, hence why the classified document case got nuked by implications of the official acts immunity ruling by the Supreme Court during the parallel attempt at anti-Trump lawfare.
The Biden Administration's effort to target Trump in the classified document case rested on an argument that Presidents have to go through a formal process for declassification, insist that because Trump did follow the process the documents were still classified, and thus that once Trump left office with them he could no longer declassify them and thus it was improper holding.
However, there is no required procedure, the current White House does not assert it has created a required procedure, and neither the National Archives or FBI ever actually identified a required process that Trump failed to follow to lead to the judgement of 'improper' holding. This is why the charges were under the espionage act for having classified documents, and not for violation of a declassification process in improperly declassifying documents. The case has hinged from the start on the argument that Trump did not declassify them, as opposed to could not do so automatically as part and parcel of the job.
Which has been utterly unsurprising to anyone actually familiar with US classification regulations. The President does not need to justify the decision to declassify to other parts of the US government, does not need to communicate that decision to anyone else, and if the President determines something no longer needs to be classified then- as long as it doesn't derive from Atomic Energy Act- there is nothing and no one to say he can't. There are all inherent aspects of being the ultimate classification and declassification authority of Executive Branch documentation, an authority that the Biden administration has never taken the position that then-President Trump didn't have the authority to do.
This is why the case functionally broke when the Supreme Court made its ruling on immunity for official acts. The President's decision to declassify solely Executive branch information is an official act. It's not something regulated by Congress. It's not something beyond the scope of the Executive to establish limits on itself either in certain ways, but no such procedural requirement was ever alleged.
No allegations?! For the umpteeth time, There is literally a recording of him doing so! It's 2 minutes long, listen for yourself.
Yes, and when the government told Biden to return the documents, he did. Trump is an outlier in that he allegedly attempted to hide documents to prevent them from being returned, That's the difference here.
They aren't going to show the actual confidential documents of course. But as you stated the cover sheet doesn't make them confidential. The contents of the documents will not be revealed to the public, but the case is immediately dead if Trump's lawyers prove the documents are not confidential. So yes, the cover sheet snafu is immaterial.
You think the government doesn't have procedures for declassifying? Trump could have changed the procedures, but he didn't do so. You are correct that Trump doesn't need to explain why he is declassifying something, but incorrect that a document is declassified simply by thinking about it. According to this article, it doesn't even matter. The Espionage Act criminalizes mishandling information "relating to the national defense" not "classified information." Meaning that theoretically you can be guilty of sharing information that was never even classified.
False. An ex-President is not a President, and the actions of a former President are by definition not official acts. The case was dismissed because Cannon bizarrely claimed that Special Counsels have no authority to prosecute, which is currently being appealed.
Your own link doesn't claim it was an argument, but Trump supporting his recounting of events of someone not present to someone else not present... and this in turn goes back to automatic declassification authority powers for when he took documents away.
Moreover, and in contradiction to the prosecutions' own thesis, the clip is raised for Trump saying that the document is classified... but the later argument (and your concluding argument) is that Trump is no longer President, and thus does not have classification authority to make- or reverse- a decision already made. However, the decision to take the documents was a decision as a President, as would have been the accompanying declassification authority implications.
Which creates the quandary of the prosecution claiming that non-President Trump's claim (which should be taken as objective and legal and not at all performative because we all know Trump would never exaggerate) overturns the inherent decisions of President Trump's declassification authority when President Trump decided what to take.
No, the difference is that Biden did not have the authority to declassify the documents, whereas Trump did. This is also a significant part of the distinction between Trump and Clinton, and Trump and Pence. Of the four cases, the only one pursued has been the one against the only figure with the actual declassification authority, who also happens to be the political opponent of the party pursuing the charges, despite the Espionage Act having no obligation to spare the former or pursue the later.
The choice to prosecute was just that- a choice. It was also a choice pursued in parallel with multiple other lawfare efforts intended to hobble the ruling party's primary political opponent.
Sure they are. They have to. Again, the classification cover sheets have no evidentiary power on their own, and so if photos are to be presented as evidence it will have to be photos of the actual confidential documents. If the photos are not going to be provided as evidence, there is no reason to take them.
Classified evidence not a new dilemma, and the US justice system has ways for showing limited classified information to a judge to validate a claim of secrets that won't be shown publicly.
No, the cover sheets are not immaterial- they are demonstrative of how the FBI attempted to shape public (and worse for them, court) perception by altering evidence they claimed to be presenting that characterized the alleged crime, and demonstrate the unnecessary but existent coordination between the Executive Branch and the partisan news agencies who received and publicized the photos that had no evidentiary purpose.
For the President? Heavens no. Nor has the prosecution, the current White House, past White Houses, Congressional Intelligence oversight committees, or lawyers identified a specific process that is required to be followed by the president before the President can treat a document as unclassified. Nor have you, for that matter.
The better question, then, is what procedure you think was violated by the President.
(And not, for example, a staff who failed to complete any supporting paperwork to note the decision after the fact.)
If you believe Trump has committed an open and shut case in not following a procedure applying to the president, you should at least be able to identify what procedure was violated, no?
(The answer to this is yes, by the way. If you reply without actually identifying the alleged procedure that specifically applies to the President, the response will merely be a question of if you've found that procedure yet.)
Prove it. Which procedure, specifically, did Trump need to have changed?
If this is as cut and dry as you think, this should be very easy for you. Instead, I suspect what you are going to do is fumble around a bit because the media reports that alleged a process violation never actually specify a Presidential process to be violated. You will find some articles on how declassification processes work for agencies, you will find notes that declassification is typically noted in memos after a decision has been made, but you will not find a standard that says that the President has to go through a process before his decision to declassify information becomes legal.
The more politically minded will note that this is a form of how partisans can lie without technically lying- they are only implying the existence of a thing (a specific procedural requirement), but never actually make the claim of what the thing actually is, which might discredit them if examined. Then they move forward on acting on the basis of the implied thing.
More contemporary historically minded people will remember that this was a routine part of anti-Trump media coverage and probes for years, including in the contemporary legal environment when Trump was being accused of fraud in which the victims testified on his behalf, an accusation which in turn was used to levy historic fines.
No, that's pretty much exactly how it works. That's what ultimate declassification authority entails and enables.
The archetypical example of ultimate declassification authority is that if a President decides in the middle of an a phone call with a foreign leader to reveal information, there is no legal issue even though the same could send other government employees to jail. The authority to do so does not come from the context, but from the position, and requires no more pre-work than the act. The action is not legalized retroactively, it was legal in and of itself.
Which, in turn, goes back to why the reporting on Presidential declassification that you will focus on are ex post facto recordings of the declassification, rather than pre-requirements. Classified information really can be declassified simply by an original classification authority deciding in the midst of a conversation that they really want to use a piece of information. The declassification does not get retroactively re-classified if they don't do paperwork, and that paperwork is in turn is owed to... the President, as the Chief of Executive. Not by the Executive, to someone else.
I laughed, but no.
In short, setting aside the various precedents that limit the Espionage Act to its historic limited utilizations, the Executive Branch has systems for designated information that it believes warrant information controls. Information that is not bound by information controls, categorically cannot be mishandled, because handling standards are established by the Executive Branch under the authority of the President.
The President, in turn, has ultimate authority over all Executive Branch information security programs. There is no one in the executive branch who can impose information control restrictions on the President, or who can reverse his decisions. If the President judges that something is unclassified and without restrictions, it is, unless the restriction is legislated by Congress.
Note, in turn, that the indictment and prosecutors have not actually cited a law under which the information could not be declassified.
Thank you for repeating the previously supplied summary of the prosecution's position.
However, the prosecution's failure to demonstrate a process failure still stands-
...which returns to assuming the conclusion as the basis of this prosecution.
Rather than proving the President Trump did not declassify the documents, which could be done by identifying a required process for the President to declassify, the prosecution is instead claiming the documents are still classified and demanding Trump prove otherwise, when the basis of proving otherwise would be a process that is not required to declassify and could be used in the stronger first form if such a requirement existed.
In shorter terms, rather than prove that Trump did not follow a required process to declassify information, the prosecution is asserting an inverse- that Trump must prove he declassified information by following a process that is not required.
The issue of demanding the target prove their innocence by compliance to a standard that does not exist should be obvious to those not partisan inclined.
They weren't arguing with each other, but he showed it to another person in order to back up his claim. Perhaps I should have used better words such as "underscore his argument." It is still him almost word-for-word saying "Don't tell anyone, but I am showing you this document that I could have declassified as President." Which would make no sense to say unless you know you didn't declassify something.
Speaking of misusing words there is no contradiction here. The argument is that Trump is showing a classified document because he never took any action to declassify it, and he knows that. He had that power when he was in office, but it's too late for him to use it. President Trump could have ordered a drone strike. Ex-President Trump cannot. Likewise, President Trump could have shared classified information but ex-President Trump cannot.
Your argument is that taking documents home when leaving office is declassifying documents because he doesn't have to tell anybody to declassify something. That argument makes no sense because the government is not a hive mind. Him thinking about it does not psychically transmit that information to anyone else. By that logic if a low-level federal contractor had taken copies of those documents home at the same time and revealed any of them, he would not be guilty because Trump declassified them, even though he had literally no way of knowing that.
In addition, Trump's actions make no sense within this context. Here's a timeline. Trump was told to return documents in May 2021. Prior recording is from fall 2021. Trump hands over 15 boxes Jan 2022. Investigation begins March 2022. In May 2022 Trump is subpoena'd. Trump reportedly tries to suggest telling them he's doesn't have any more classified documents. Nauta is accused of moving boxes around. In June 2022 they collect more documents. On August 2022 they raid and find more documents.
Under your proposed explanation, where in this 1.5 year process does Trump refuse to give anything back and argue he doesn't have to give back documents that aren't classified in the first place?
Obama's executive order remained in effect because executive orders are not automatically null when a President leaves, and President Trump did not null them. The argument is this.
The information was classified.
There are conditions necessary to declassify information, and none of them were fulfilled.
Trump did not waive any of those conditions.
In other words, it was a violation because what Trump did is not described in here, and President Trump did not null the order itself or declare this information any exception to it.
The closest is this:
President Trump can share information, but that doesn't declassify it. That just makes a single person privy to confidential information without being punished for it (though if they share that information they may be punished for it). President Trump could have ordered the information to be declassified, but him supposedly thinking about it does not do that. He can skip the process, but he has to actually say he's skipping the process. He cannot claim as a former President that he thought about it doing it in 2020 and that is the same as doing so, any more than he can pardon someone today by claiming he was thinking about it before he left office.
Executive 13526 does not establish a procedural requirement for the President to follow any particular process to declassify information. Therefore, there is nothing for Trump to null.
Which is unsurprising for you to not have caught on to, as you seem to have gone straight to Section 1.6, Identification and Markings, and so skipped or never got to various relevant sections.
These includes-
Sec. 1.3. Classification Authority.
(a) The authority to classify information originally may be exercised only by:
(1) the President and the Vice President;
(2) agency heads and officials designated by the President; and
(3) United States Government officials delegated this authority pursuant to paragraph (c) of this section.
...establishing a categorical difference in offices who can inherently originally classify and delegated classification authorities, of which later sections apply different standards to...
and
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: (4) prevent or delay the release of information that does not require protection in the interest of the national security.
...which is to say prevent or delay a President's decision to declassify, who as the ultimate classification authority gets to decide what does not require protection in the interest of the national security (other than atomic secrets)...
and
Sec. 1.7. Classification Prohibitions and Limitations.
(c) Information may not be reclassified after declassification and release to the public under proper authority unless:
...which is to say there are a number of caveats which are not even alleged to have been met by the prosecution, even without the executive superiority of a Presidential declassification...
and
Secs 1.8 and 1.9, Classification Challenges and Fundamental Classification Guidance Review ...which focus their guidance to Agency Heads and below, which a President is not....
and
PART 3 -- DECLASSIFICATION AND DOWNGRADING ...which in general establishes the President as an appeal authority to for standards ascribed to agency heads and below, but not the President...
and
Sec. 3.1. Authority for Declassification.
(b) Information shall be declassified or downgraded by: (1) the official who authorized the original classification, if that official is still serving in the same position and has original classification authority; ... (3) a supervisory official of either the originator or his or her successor in function, if the supervisory official has original classification authority; or
...which, per Sec. 1.3 establishing that the President has original classification authority and authorized the original classification via delegated original classification authority and is the supervisory official of all executive branch agencies...
and
PART 4 -- SAFEGUARDING Sec. 4.1. General Restrictions on Access.
(i.) (2) *Classified information originating in one agency may be disseminated by any other agency * to which it has been made available to a foreign government in accordance with statute, this order, directives implementing this order, direction of the President, or with the consent of the originating agency. For the purposes of this section, "foreign government" includes any element of a foreign government, or an international organization of governments, or any element thereof.
...demonstrating that Presidential direction has its unique force without process requirement as well as authority to disseminate to any other agency (which includes the office of the White House)...
and
Sec. 4.3. Special Access Programs.
(a) Establishment of special access programs. Unless otherwise authorized by the President, only the Secretaries of State, Defense, Energy, and Homeland Security, the Attorney General, and the Director of National Intelligence, or the principal deputy of each, may create a special access program.
...demonstrating again that Presidential direction has its unique force without process requirement in the handling of classified information...
and, of course, definition (gg)
(gg) "Original classification authority" means an individual authorized in writing, either by the President, the Vice President, or by agency heads or other officials designated by the President, to classify information in the first instance
...which is to say, all EO 13526 requirements placed on Original Classification Authorities do not apply to the President, the Vice President, or by agency heads or other officials designated by the President, because for the purpose of policy those people (who have original classification authority per Sec. 1.3) are not, themselves, Original Classification Authorities (proper noun).
There are more, but they'd require more characterization and this review of American regulatory requirements has gone long enough.
Plus, it's all redundant, since none of them actually, you know, identify a required process for the President.
Since you have failed to identify a specific process the President must follow to declassify information, feel free to return when you find one.
Yes, the Executive Order applies to the document itself, and to the agencies following that.
The documents were at some point classified. Do we agree at that point? Therefore something has to change to make them not classified. The President has 2 special powers:
The power to share classified material without punishment, which does not make it declassified.
The power to declassify without following the process.
I think we agree on both of these points. Do we not?
My argument from there is that, there is no process the President must follow to declassify. He can do almost literally anything to declassify it, but there is one thing that does not fall under "literally anything," and that is nothing. Nothing meaning "Not Thing," as in he did not do the thing. Therefore, they retain their existing status of classified. "Thinking about it" is also nothing, because it is still classified as far as the entire rest of the government knows. Even something as simple as letting anyone who could communicate the decision know would probably work.
I will repeat my earlier questions:
If these documents were not classified at all, then why didn't Trump at any point between May 2021 and August 2022 say that he had no intentions of returning the documents because he doesn't have to? And why did he say in fall 2021 that he didn't declassify them?
As expected, you still haven't identified a specific process the President is required to do that Trump failed to follow. Feel free to come back when you do.
Because he doesn't have to follow a process. He just has to actually do it. There is no such thing as a Presidential power that is exercised only by thinking about it.
Feel free to come back with an explanation for why Trump tried to hide the documents for a year and a half when he apparently had nothing to hide at all.
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