The alternative to a trial of the former President is a continuation of the endless stream of leaks from prosecutors and misguided interpretations of the law from the real card carrying experts in the media. If you truly believe the former President is guilty of something, let him have his day in open court.
Tell me if you’ve heard this one before: The walls are closing on President Trump. He’s the subject of multiple investigations by the federal government and one or more blue states. Prosecutors at every level are preparing landmark charges while the mainstream media is convinced a major shoe will drop any minute now. The actual phrase “walls closing in” was used long before the latest mania over the FBI raid. Newsweek used it July 9, The Guardian January 23, and Yahoo News in December of last year. The phrase can be found much earlier as well. It appeared in 2019 from WBUR Boston Radio, in 2018 from CNN, and in 2017 from The New Republic. The Daily News is perhaps most exemplary, “The walls are closing in on Trump–and he’s starting to lose it.” This article ran on June 7, 2021. These references are sourced from merely the top 3 pages of a Google search. There are surely hundreds, if not thousands more, and yet despite the steady drumbeat, the walls have never actually closed. How can that possibly be the case? How can the media and their real card carrying experts possibly be wrong over and over again? Bias, of course, plays a part. There is no doubt that the majority of these media outlets are decidedly anti-Trump and need to create a steady stream of negative stories. At the same time, it seems clear that many in the media, the expert class, and the broader progressive population truly believe this. Like Charlie Brown with Lucy and the football she always yanks away, they are convinced every time that the latest “walls are closing in” craze will end differently than the last time. To me, this implies there must be a different explanation. I would posit two separate reasons.
First, the prosecutors themselves are happy to leak incredibly vague information to feed these stories, creating the sense that something big must be happening. The unprecedented raid on former President Donald Trump’s Mar-a-Lago residence was followed by a bizarre combination of the Attorney General insisting the Department of Justice can’t speak about ongoing investigations and a series of leaks from anonymous sources suggesting the former President had committed a serious crime. Whether or not these leaks have proved accurate in the past and however vague the current insinuation, the media covers them as if they were the absolute truth, right up until the next leak disputes it. The aftermath of the raid alone featured several classic examples. Before Merrick Garland addressed the country on August 11, we were told he was not responsible for the actions of the FBI and hadn’t personally approved the warrant along with the suggestions that a confidential human source had provided critical information. “The raid on Mar-a-Lago was based largely on information from an FBI confidential human source, one who was able to identify what classified documents former President Trump was still hiding and even the location of those documents, two senior government officials told Newsweek.” “The senior Justice Department source says that Garland was regularly briefed on the Records Act investigation, and that he knew about the grand jury and what material federal prosecutors were seeking,” but that “FBI director Christopher Wray ultimately gave his go-ahead to conduct the raid.” “It really is a case of the Bureau misreading the impact,” explained the unnamed official, providing cover for Attorney General Garland.
The very next day, the Attorney General disputed the story, claiming he personally approved the raid, but could not comment on the matter. The leaks, however, kept coming. This time The Washington Post reported that unnamed sources believed the former President was withholding unnamed “nuclear secrets,” and the Justice Department believed there was a danger these secrets could end up in the hands of a foreign power. “Classified documents relating to nuclear weapons were among the items FBI agents sought in a search of former president Donald Trump’s Florida residence on Monday, according to people familiar with the investigation.” Perhaps needless to say, the Post cited several “experts” into these matters. “Experts in classified information said the unusual search underscores deep concern among government officials about the types of information they thought could be located at Trump’s Mar-a-Lago Club and potentially in danger of falling into the wrong hands.” This was big, but sometimes the leaks are especially small and petty. The following Monday President Trump claimed the FBI had confiscated his passports, even though they weren’t on the official inventory that was unsealed by the Justice Department. An anonymous source quickly denied the story, but barely a few hours later the passports were returned. The following day yet another story leaked on how the Attorney General agonized over the decision. The Wall Street Journal reported, “Attorney General Merrick Garland deliberated for weeks over whether to approve the application for a warrant to search former President Donald Trump’s Florida home, people familiar with the matter said, a sign of his cautious approach that will be tested over the coming months…The decision had been the subject of weeks of meetings between senior Justice Department and FBI officials, the people said.” Of course, this leak necessarily contradicts the idea that the urgency for the decision was driven by the fear of nuclear secrets falling into hostile hands. Nor does it explain why the Attorney General didn’t take advantage of this time to obtain an opinion from the Office of Legal Counsel, the government agency expressly designed to draft legal opinions and provide advice to the Attorney General, especially in controversial matters like these.
Second, the media is fond of relying on experts that have absolutely no idea what they’re talking about, or their bias is so strong they cannot provide a rational analysis of the facts when Trump is involved. At issue over the past week are the President’s power over classified information and the Presidential Records Act. Expert after expert cited in the media believe the President is bound by strict rules concerning both, when the reality has proven far different in the past. Certainly, Congress and the Executive Branch have crafted a near endless amount of laws and regulations to control classified information, some of which they claim applies to the President himself. This, however, is not the question. For example, J. William Leonard, writing for JustSecurity.org, claimed it is both partially true and partially false that the President has “absolute authority” over classified information because some of it is governed by “statutory law.” “For example, the Atomic Energy Act of 1954 as amended (AEA) states that ‘all data concerning (1) design, manufacture, or utilization of atomic weapons; (2) the production of special nuclear material; or (3) the use of special nuclear material in the production of energy’ is effectively ‘born classified’ unless officially ‘declassified or removed from the Restricted Data category’ in accordance with the Act.” This material “requires review prior to the removal of classification safeguards.” Mr. Leonard cited another example as well, “when an allied or friendly nation does not want revealed the fact that they have shared extremely sensitive information with the U.S government. Unless the United States can convince a partner nation that their information can be adequately protected, they may be dissuaded from sharing it, thus placing the United States and its citizens at increased risk. To facilitate exchanges of such information, the United States has entered into a number of legally binding agreements with foreign governments.”
The real question, of course, is whether the President can be bound by these laws in the first place. The Congress cannot pass a law stripping the executive of Constitutionally delegated powers; they are a co-equal branch of government that has no day-to-day role in the administration of the executive branch. The last time the Supreme Court weighed in on that matter, it appears they understood the President’s power to be absolute, contrary to all of these claims. In 1988, the Court noted, “The President, after all, is the ‘Commander in Chief of the Army and Navy of the United States.’ The U.S. Constitution, 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 and exists quite apart from any explicit congressional grant…The authority to protect this information falls on the President as head of the Executive Branch and Commander in Chief.” In other words, Congress can say what it likes, but it doesn’t necessarily mean anything when the President is personally involved. Likewise, Mr. Leonard believes the President is beholden to complex processes to declassify information. “If the former president personally declassified information contained in documents removed to the White House residence, procedures should have been in place to notify the official who originally classified that information who in turn would have to have notified the potentially millions of individuals who derivatively classified or otherwise had copies of that same classified information.” He continued to note that no “such procedures appear to have existed during the Trump administration,” suggesting that Trump exceeded his authority or did something illegal.
We know, however, that the President can declassify information without creating a paper trail of any kind based on the investigation of Scooter Libby during George W. Bush’s time in office. President Bush and Vice President Dick Cheney instructed Mr. Libby, then the Chief of Staff to the Vice President, to leak information to the press concerning Iraq’s purported Weapons of Mass Destruction Program. Special Counsel Patrick Fitzgerald conducted a years-long investigation into the matter and ultimately filed charges against Mr. Libby for perjury and obstruction of justice. He was not charged with mishandling or releasing classified information because he was acting on the President’s orders, even though there were no written instructions. “The Libby case might have been the first time in memory that the question of unilateral presidential declassifications arose,” Steven Aftergood, a leading authority on classified information policy, explained to Politico. “It was giving one-time permission to a particular individual to disclose information to another particular individual … It highlights the fact that the president purports to, or does, stand outside of the classification system.” As Politico put it themselves, “The Libby case is not an apples-to-apples parallel to the current dispute over Trump’s handling of classified materials, but it shows that past prosecutors have seen some nuance in exactly how a president may be able to declassify information without a clear paper trail.”
Further, the same story is playing out regarding the Presidential Records Act. The experts and the media continue to insist that the National Archives has sole authority over Presidential records and that former President’s must defer to them in all decisions. As ABC News described it, “The law governing the records-keeping responsibilities of presidents is the Presidential Records Act, which was enacted in 1978 and requires any memos, letters, emails and other documents related to the president’s duties be preserved and given to the National Archives and Records Administration at the end of an administration. But the Archives has recently revealed that Trump tore up documents while in office, some of which were pieced back together by White House records management officials, and brought with him more than a dozen boxes of items and letters to Mar-a-Lago, his Palm Beach, Florida, residence, after leaving office last year. The boxes were retrieved by the Archives last month, the agency said. Anne Weismann, a lawyer who represented watchdog groups that have sued Trump over violations of the Presidential Records Act, told CBS News that the former president ‘clearly violated’ the Presidential Records Act in ‘multiple ways,’ including by ripping up records. But ‘the real problem is there’s absolutely no enforcement mechanism in the Presidential Record Act and there’s no administrative enforcement provision,’ she said.” Ms. Weisman’s opinion, however, is at odds with a DC District Court’s ruling on the records act in 2012. At the time, they ruled that the President has sole authority concerning records, “Under the statutory scheme established by the PRA, the decision to segregate personal materials from Presidential records is made by the President, during the President’s term and in his sole discretion, so the Deputy Archivist could not and did not make a classification decision that can be challenged here.” In other words, the National Archives makes requests, the President can agree or disagree, there is ultimately a legal process outside the Department of Justice to resolve any disputes, and this legal process doesn’t involve potential charges for violations of the act. Basically, the complete opposite of what we’ve been told over and over again.
All of the information I cited here is readily accessible online. It takes no special knowledge to find or understand it, and yet the experts keep telling us something completely different, if not entirely untrue, at least untested, failing to even acknowledge there is the possibility they are wrong. Ultimately, there is only one way to resolve this impasse: The Justice Department and their wingmen and women in the states must either charge Trump in short order or formally close the investigations, making it clear that no charges were filed because the former President wasn’t guilty of any crime. The status quo of endless leaks and incorrect interpretations of the law is unacceptable, unless of course the primarily goal is simply to impugn Trump himself. Sadly, it certainly seems to me that this is a likely possibility: These same experts generally believe the Justice Department can close these investigations without saying a single word, leaving the impression of vague charges lingering forever. If they truly believe he is guilty, however, take it to open court where the rule of law still exists to some degree, and the President can defend himself in a reasonably fair and transparent manner. The trial of a former President would be a spectacle unlike any we have ever seen, but it’s long past time for justice to be properly served rather than delivered via leak and the decree of card carrying experts that can’t be trusted.