(1) Interplay between the Espionage Act and the Presidential Records Act

A lot of my friends have spoken insightfully about the scope of the Presidential Records Act. I’d direct you to Mike Davis’s (@mrddmia) commentary on the subject, and also Michael Bekesha of…

— Will Scharf (@willscharf) June 15, 2023

Long thread, good info/share.

these legal theories are so reminiscent of 2021

"outrageous and shocking", not criminal... Now watch 'criminal' be redefined in real time.

eric76 said:

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More importantly, can a President magically pardon himself just by thinking it in the same way that some say he can declassify documents just by thinking it?

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I know this is REALLY difficult. The POTUS is THE Executive Branch. He can declassify anything. Laws passed by Congress regarding classification do not impact him. "Rules" put in place by employees of the Executive Branch do not apply to him. HE does not work under those people's authority.

Ellis Wyatt said:

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eric76 said:

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More importantly, can a President magically pardon himself just by thinking it in the same way that some say he can declassify documents just by thinking it?

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I know this is REALLY difficult. The POTUS is THE Executive Branch. He can declassify anything. Laws passed by Congress regarding classification do not impact him. "Rules" put in place by employees of the Executive Branch do not apply to him. HE does not work under those people's authority.

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Why are we still discussing this when the FBI had recorded audio that Trump didn't declassify?

Interesting tidbit about the lawyer being offered a judgeship if he could get his client to turn on Trump. The lawyer that made the allegation is legit (former circuit level clerk and Akin Gump (massive/high end firm) partner). Wouldn't make that sort of allegation if it wasn't true because it would completely destroy his reputation. That is going to cause some serious problems for the DOJ.

Indeed, that is interesting. The "Get Trump!!!" derangement is really destroying some reputations far and wide, imho.

Manhattan said:

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Ellis Wyatt said:

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eric76 said:

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More importantly, can a President magically pardon himself just by thinking it in the same way that some say he can declassify documents just by thinking it?

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I know this is REALLY difficult. The POTUS is THE Executive Branch. He can declassify anything. Laws passed by Congress regarding classification do not impact him. "Rules" put in place by employees of the Executive Branch do not apply to him. HE does not work under those people's authority.

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Why are we still discussing this when the FBI had recorded audio that Trump didn't declassify?

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It doesn't even matter what he says. The act of him having them is declassification. He has no hoops to jump through. His authority is constitutional, not granted by some department.

Ellis Wyatt said:

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Manhattan said:

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Ellis Wyatt said:

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eric76 said:

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More importantly, can a President magically pardon himself just by thinking it in the same way that some say he can declassify documents just by thinking it?

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I know this is REALLY difficult. The POTUS is THE Executive Branch. He can declassify anything. Laws passed by Congress regarding classification do not impact him. "Rules" put in place by employees of the Executive Branch do not apply to him. HE does not work under those people's authority.

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Why are we still discussing this when the FBI had recorded audio that Trump didn't declassify?

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It doesn't even matter what he says. The act of him having them is declassification. He has no hoops to jump through. His authority is constitutional, not granted by some department.

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Absolutely not. Whether you're talking about when he was President or after he was President. Absolutely not.

Ellis Wyatt said:

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It doesn't even matter what he says. The act of him having them is was declassification. He has had no hoops to jump through. His authority is was constitutional, not granted by some department.

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Fixed your post for when he was president.

At the time of the incident he was criminally charged over, he was not president and not empowered to do any of those things.

Ellis Wyatt said:

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Manhattan said:

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Ellis Wyatt said:

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eric76 said:

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More importantly, can a President magically pardon himself just by thinking it in the same way that some say he can declassify documents just by thinking it?

---

I know this is REALLY difficult. The POTUS is THE Executive Branch. He can declassify anything. Laws passed by Congress regarding classification do not impact him. "Rules" put in place by employees of the Executive Branch do not apply to him. HE does not work under those people's authority.

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Why are we still discussing this when the FBI had recorded audio that Trump didn't declassify?

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It doesn't even matter what he says. The act of him having them is declassification. He has no hoops to jump through. His authority is constitutional, not granted by some department.

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Further to the point, EVEN IF he didn't declassify them, they have to prove all kinds of mens rhea about his mental awareness of the status, and his duty as to who he should give them to, and that he actually shared the classified info, instead of talking about it and pointing at a folder/paper that at one point had been classified (as though an op plan to invade Iran wouldn't change at some damn point within 18 months).

The recording…really is small potato's. I am sure on propaganda channels/outlets that is all not covered at all, though, for the TDS news aficionados.

nortex97 said:

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Further to the point, EVEN IF he didn't declassify them, they have to prove all kinds of mens rhea about his mental awareness of the status, and his duty as to who he should give them to, and that he actually shared the classified info, instead of talking about it and pointing at a folder/paper that at one point had been classified (as though an op plan to invade Iran wouldn't change at some damn point within 18 months).

The recording…really is small potato's. I am sure on propaganda channels/outlets that is all not covered at all, though, for the TDS news aficionados.

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This is all about giving DC leftists the power to control the timeline of this nonsense. They can have "breaks" in the case any day they want to so they can politically damage him on demand.

It's brilliant in a completely fascistic sort of way. Just think how many people here proudly voted for fascism and are celebrating it.

So where do protections and privileges start and stop for former heads of the Executive Branch?

fc2112 said:

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Ellis Wyatt said:

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It doesn't even matter what he says. The act of him having them is was declassification. He has had no hoops to jump through. His authority is was constitutional, not granted by some department.

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Fixed your post for when he was president.

At the time of the incident he was criminally charged over, he was not president and not empowered to do any of those things.

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Except he was president when he took them out of White House to Mar a lago when he was still empowered. The crucial moment and act per the PRA occurred while he was still president.

fc2112 said:

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At the time of the incident he was criminally charged over, he was not president and not empowered to do any of those things.

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He was President when he acquired the documents, unlike the ****** you voted for.

Everything else is bull*****

ThunderCougarFalconBird said:

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Interesting tidbit about the lawyer being offered a judgeship if he could get his client to turn on Trump. The lawyer that made the allegation is legit (former circuit level clerk and Akin Gump (massive/high end firm) partner). Wouldn't make that sort of allegation if it wasn't true because it would completely destroy his reputation. That is going to cause some serious problems for the DOJ.

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While we are talking about federal records, in particular, electronic records, remember several high members of Team Mueller, wiped their government issued phones relative to the investigation.

Gaetz sent a letter to Garland warning not to allow that to happen with Jack Smith and his team.

Quote:

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Finally, it is a matter of public record now that at least 27 devices used in the Mueller probe were unlawfully wiped clean of records, often by senior prosecutors on that probe, including Andrew Weismann and Greg Andres, or by more junior staff, such as Kyle Freeny and Rush Atkinson. I am deeply concerned that such flagrantly illegal, and debarrable conduct, seeking to cover up prosecutorial misconduct, will be repeated by Special Counsel Jack Smith and his team.

As a result:
1) Please take care to comply with all applicable recordkeeping laws; and

2) Please provide my office with copies of all applicable notices and training provided to staff within the Office of Special Counsel Jack Smith, giving staff notice of their obligations under federal law and Department of Justice policy, by the date specified above.

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He also apprised Garland of Karen Gilbert's past misconduct.

Quote:

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As you are undoubtedly aware, the work of Special Counsel Jack Smith is both highly irregular and of extraordinary public concern. Indeed, it is of such concern that the Department of Justice has fielded multiple requests of Congress, from individual member offices and full Committees. My office alone fields numerous calls of constituents asking about the Special Counsel, his authorities, and how his office is structured. It is beyond debate that this simple staff list cannot be withheld from Congress or the public on the basis of attenuated and entirely fantastic privacy concerns. This information is not only of public interest in the abstract but is highly critical to the ongoing oversight work of the federal Congress.

It is already public that one of Jack Smith's deputies, Karen Gilbert, resigned in 2009 from her position as head of the narcotics section of the United States Attorney's Office for the Southern District of Florida after misconduct which DOJ stated it "deeply regrets" and which cost the American taxpayer over $600,000 in a settlement.1 This misconduct was both referred to the DOJ Office of Professional Responsibility and the Florida Bar. Furthermore, Federal Election Commission records indicate that Ms. Gilbert has made thousands of dollars in donations to "Biden for President," "Obama for America," the "DNC Victory Fund," "Obama Victory Fund 2012," and associated partisan organizations.

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Letter

Ellis Wyatt said:

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Manhattan said:

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Ellis Wyatt said:

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eric76 said:

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More importantly, can a President magically pardon himself just by thinking it in the same way that some say he can declassify documents just by thinking it?

---

I know this is REALLY difficult. The POTUS is THE Executive Branch. He can declassify anything. Laws passed by Congress regarding classification do not impact him. "Rules" put in place by employees of the Executive Branch do not apply to him. HE does not work under those people's authority.

---

Why are we still discussing this when the FBI had recorded audio that Trump didn't declassify?

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It doesn't even matter what he says. The act of him having them is declassification. He has no hoops to jump through. His authority is constitutional, not granted by some department.

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The goalposts have moved quite far.

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The goalposts have moved quite far.

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My goalposts have never moved. The President's constitutional authority does not hinge on some leftist bureaucrat with no authority.

Bryanisbest said:

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fc2112 said:

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Ellis Wyatt said:

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It doesn't even matter what he says. The act of him having them is was declassification. He has had no hoops to jump through. His authority is was constitutional, not granted by some department.

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Fixed your post for when he was president.

At the time of the incident he was criminally charged over, he was not president and not empowered to do any of those things.

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Except he was president when he took them out of White House to Mar a lago when he was still empowered. The crucial moment and act per the PRA occurred while he was still president.

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When he was President, him taking them to Mar-A-Lago would be nothing more than the President taking classified documents to Mar-A-Lago. Presidents of course travel all over the world and stay in all sorts of places. They almost always have classified information with them or delivered to them while they are there.

The President taking classified documents to any particular place would not be, without something more, a declassification action. There is nothing inherent about the President taking documents somewhere that would declassify them.

The status of documents under the PRA also does not swing on classification status.

Stolen from Rocky in another thread

The bureaucracy got its feelings hurt, clearly.

Ellis Wyatt said:

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fc2112 said:

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At the time of the incident he was criminally charged over, he was not president and not empowered to do any of those things.

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He was President when he acquired the documents, unlike the ****** you voted for.

Everything else is bull*****

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Even if he declassified them, it does not mean they are no longer Presidential Records (see the 11th Circuit's opinion from September, 2022 in Trump's lawsuit if you do not believe me) nor does it mean they are no longer national defense information.

All of this declassification business is a red herring, at best.

Ellis Wyatt said:

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Quote:

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The goalposts have moved quite far.

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My goalposts have never moved. The President's constitutional authority does not hinge on some leftist bureaucrat with no authority.

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He wasn't the president when he was admittedly waving around non declassified, classified national security information around his golf club, for clout.

why is the author of this tweet arguing trump didn't violate the espionage act? he wasn't indicted for espionage

And even if you firmly believe they were declassified, which I don't think you actually believe that…

How are you okay with him waving around national security information, for having classified documents in a bathroom anyone can access for a political donation, including a Chinese spy.

"Serious" national defense information to the people who want it to be. I think the public would take their affairs more seriously if the DOJ/intelligence community weren't so self-motivated.

Manhattan said:

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Ellis Wyatt said:

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Quote:

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The goalposts have moved quite far.

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My goalposts have never moved. The President's constitutional authority does not hinge on some leftist bureaucrat with no authority.

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He wasn't the president when he was admittedly waving around non declassified, classified national security information around his golf club, for clout.

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I would like to know from the people defending trump why this is ok? If the recording is true and he did have non declassified documents in his possession in a nonsecure area as former president, How is this not breaking the law?

And just to get ahead of it we are not talking about Hillary or Biden (that is a separate issue which I agree they need to be prosecuted and forced to stand trial) we are talking about Trump.

And this was the endgame all along, proving it is political.

Maddow: Trump Can “Avoid Jail Time” by Dropping Out of 2024 Presidential Race https://t.co/uIwbVlMUjA

— 🇺🇸🇺🇸Josh Dunlap🇺🇲🇺🇲 ULTRA-MAGA (@JDunlap1974) June 15, 2023

That's a really bad take from Mr. Davis. The PRA does not say anywhere that documents not designated as Presidential or Personal default to Personal. That's a completely made up assertion.

And, by the way, if the Trump White House produced some sort of guidance or general rule stating as much, that would be subject to judicial review that the guidance is in accordance with the language of the PRA under the Armstrong cases (and the case he mentions in that tweet.)

...

He's misreading and taking "available" out of the context. (1)The PRA also talks about making Presidential records "available" to the public and none of us have the right to go take documents from a Presidential Library home and keep them at our house. That's just not what "available" means. (2) That reading of "available" by Mr. Davis is completely at odds with the rest of the regulatory scheme under the PRA, which says the President doesn't own them, that the records are to go to a NARA facility, etc., etc., etc.

Annie, don't bother the liberals on here. They're having too much fun.

the_batman26 said:

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The bureaucracy got its feelings hurt, clearly.

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And there is such circular logic happening here. The White House has a Records Management Office that works in conjunction with NARA. Were they keeping tabs on the flow of paperwork in and out of various locations? The Oval? The residence? Mar A Lago? Is there an inventory somewhere?

Remember the gnashing of teeth and pearl clutching over photos of puply papers supposedly in White House toilets? How did the then Archivist David Ferreiro react to that?

Quote:

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When members of the White House Office of Records Management came for a tour of the archives near the end of his term, Ferriero had a special gift for longtime director Philip Droege.

"I presented Phil with a plunger with his name on it," he said.

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LINK

NARA sometimes claims they don't know what is in which box, just that some things are missing. How do they know? And how would Trump know he had them? So for people saying Trump should have just given NARA everything and then sue to get his personal items back, how would he do that if he desn't know what all is in them? Without an inventory?

See, but they won't stand trial. That's why some hyper-focus on the orange man's indictment. They know Hillary nor Joe will face charges and even support the fact they should; because it'll never happen.

Rockdoc said:

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Annie, don't bother the liberals on here. They're having too much fun.

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I don't worry about them. They're dumber than Biden.

TXAggie2011 said:

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That's a really bad take from Mr. Davis. The PRA does not say anywhere that documents not designated as Presidential or Personal default to Personal. That's a completely made up assertion.

And, by the way, if the Trump White House produced some sort of guidance or general rule stating as much, that would be subject to judicial review that the guidance is in accordance with the language of the PRA under the Armstrong cases (and the case he mentions in that tweet.)

...

He's misreading and taking "available" out of the context. (1)The PRA also talks about making Presidential records "available" to the public and none of us have the right to go take documents from a Presidential Library home and keep them at our house. That's just not what "available" means. (2) That reading of "available" by Mr. Davis is completely at odds with the rest of the regulatory scheme under the PRA, which says the President doesn't own them, that the records are to go to a NARA facility, etc., etc., etc.

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I think Davis's take results from the "sock drawer" decision. Two points that I've read that will surely be points of contention:

1. The Archivist does not have the authority to determine what is Presidential Records vs. Personal Records. That authority rests soley with the President. The decision stated: "NARA does not have the authority to designate materials as 'Presidential records,' NARA does not have the tapes in question, and NARA lacks any right, duty, or means to seize control of them."

2. I've also heard the argument that alleges the "classified" documents are Agency Records rather than Presidential/Personal Records; but, Mark Levin argued yesterday that copies GIVEN TO the President - such as daily briefing notes - can be argued as Presidential/Personal, as they are not the only copy. NARA/affected agencies already have copies of those documents, so it's not as if Trump destroys his that that information is lost. So the Agency copies are the originals drafted by the Agency. They don't "own" a copy of the original that was given to the WH. Those copies are now Presidential/Personal and under the purview of the President.

I'm not advocating a position here. I'm simply stating what I've seen/heard, It's going to be an interesting ride.