A heavily redacted affidavit prompts more questions than answers, but much larger issues are at stake. Can anyone supersede the President’s classification powers? What if the information was declassified as Trump says and the entire investigation is based on a false premise? Why has no one answered that question? Who’s in charge of Presidential records, a former President or a bureaucrat? Why would anyone think it’s a bureaucrat?
There was near universal agreement following the release of the redacted affidavit justifying the FBI raid on former President Trump’s Mar-a-Lago residence last week: The heavily blacked out document raises more questions than answers, revealing little more than we already knew. The affidavit begins by stating “The government is conducting a criminal investigation concerning the improper removal and storage of classified information in unauthorized spaces, as well as the unlawful concealment or removal of government records. The investigation began as a result of a referral from the United States National Archives and Records Administration (NARA) sent to the United States Department of Justice (DOJ) on February 9, 2022.” At this point, we can easily dismiss the references to the “unlawful” concealment of government records. The applicable statute, the Presidential Records Act has no criminal enforcement provisions, making it a matter for civil actions in the courts. Therefore, the entire investigation, such as it is, hinges on whether or not the material returned to the National Archives was in fact classified at the time, or was declassified prior to its removal from the White House. In this regard, the affidavit itself takes great pains to note the various markings reviewed by the FBI to suggest they were in a classified state, noting specifically that the “FBI’s investigation has established that documents bearing classification markings, which appear to contain National Defense Information (NDI) were among materials contained in the FIFTEEN BOXES and were stored at the PREMISES in an unauthorized location.” These include 184 unique documents bearing classification markings, 67 of which were marked CONFIDENTIAL, 92 SECRET, ad 23 TOP SECRET. The Special Agent who prepared the affidavit “received training at the FBI Academy located in Quantico, Virginia, specific to counterintelligence and espionage investigations. Based on my experience and training, I am familiar with efforts used to unlawfully collect, retain, and disseminate sensitive government information, including classified NDI.” The affidavit then continues to list the various laws and Executive Orders violated for possessing this information including potentially the Espionage Act.
Taken together, it all sounds like something out of a spy novel: A highly trained and experienced agent tracking down dangerous documents before they fall into enemy hands. The only problem with this ludicrous narrative is: President Trump claims he unclassified them, which would effectively end the entire debacle outright. The affidavit even mentions this specifically: “I am aware of an article published in Breitbart on May 5, 2022…which states that Kash Patel, who is described as a former top FPOTUS administration official, characterized as ‘misleading’ reports in other news organizations that NARA had found classified materials among records that FPOTUS provided to NARA from Mar-a-Lago. Patel alleged that such reports were misleading because FPOTUS had declassified the materials at issue.” This remains the root cause of the dispute; the trunk from which all other branches sprout. Setting aside exaggerated claims that the Espionage Act can apply even if the materials in question aren’t classified, which is technically true yet incredibly difficult to conceive in practice given the affadavit’s own reliance on the possession of classified information, the FBI and the Archives believe the materials were classified and the accompanying statutes and Executive Orders must apply. Former President Trump and his team do not. If the Trump team is correct, the FBI raided a former President’s home without any crime having possibly been committed and the entire investigation is based on a false premise. In this case, it seems overwhelmingly obvious, at least to this observer, that questions regarding the President’s declassification authority should have been answered first and foremost, even before the investigation was launched. We might rephrase it accordingly: In a dispute over classification authority, who wins, a former President who removed these documents while in office and insists they were declassified, or bureaucrats at the National Archives and FBI?
Admittedly, the answer is not entirely clear, but there are some convincing reasons to believe the President has almost absolute authority in this regard. In 1988, the Supreme Court ruled that “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.” We also know that the President has the power to declassify information verbally without any written record based on the investigation of Scooter Libby, Vice President Dick Cheney’s Chief of Staff while George W. Bush was in office. “The Libby case might have been the first time in memory that the question of unilateral presidential declassifications arose,” explained Steven Aftergood, a leading authority on classified information policy. “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.” Mr. Aftergood was quoted in an article from Politico, which claimed overall that “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.” We should add past judges and courts as well. Finally, we know that the National Archives does not have final say over the disposition of presidential records. A district court ruled in 2012, “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.”
There are, of course, experts who disagree with these assessments, but that does little to change the fundamental point: If my reading of the applicable laws and regulations is correct, and the President has broad powers in this regard, no crime could’ve been committed and the entire investigation is based on false premises. It would be like investigating a person for robbing their own home, stealing their own stuff.
The question then becomes: Why did the Department of Justice fail to seek a legal opinion on the matter before launching the investigation? The Office of Legal Counsel exists expressly for this purpose. Their memorandums are not binding in a court of law, but have been used to provide justification for controversial decisions in the past and there is little more controversial than raiding a former President’s home seeking classified information that may not be classified. At the least, obtaining an opinion from the Office of Legal Counsel would ensure that all proper steps were taken before the raid and that a full analysis of the situation outside the direct hands of a prosecuting attorney, whose sole job is to secure indictments and convictions, was conducted. They were not, which leads us to a discussion of what we may call first principles. These are the important matters above and beyond the specifics of any case. What the Founders referred to as Natural Law. It is very little discussed in the media, but the investigation and possible indictment of President Trump touches on several key questions critical to the underpinning of our Constitutional Order, namely the separation of powers and whether a deference to elected office holders or bureaucrats is preferable in a Constitutional Republic. Love Trump or hate him, he occupied the highest elected office in the country and was invested with all the powers that come with leading the Executive Branch of government. The Executive Branch itself has clearly identified powers proscribed by the Constitution as a separate but equal branch among Congress and the Judicial System. Article II, which describes the powers of the President, begins by noting “The executive Power shall be vested in a President of the United States of America.” These include the designation of Commander in Chief of the armed forces with sole authority over decisions regarding national defense. This is why the 1988 Supreme Court noted these powers exist “quite apart from any explicit congressional grant” and why it seems unlikely to many observers that the President cannot be bound by any laws or Executive Orders regarding classified information. His power supersedes them both, nor does it flow from them in any way. In other words, neither Congress nor the Judiciary nor an Executive Order from another President can limit the current President’s authority in these specific matters because he is not dependent on them for any of these powers.
The second fundamental principle is more subtle, but no less important. The affidavit and the supporters of this action in the mainstream media clearly believe that a President has no authority over their own records, and their will is entirely subservient to middling, unelected bureaucrats in the National Archives. Thus, they “demand” whatever records they see fit, and a meek President has no choice except to comply. Moreover, if these individuals feel laws they do not understand and are not empowered to enforce are violated, they have sole discretion to refer the matter for criminal investigation, where it will be addressed by yet another unelected bureaucrat. Even ostensible allies of President Trump such as Missouri Senator Roy Blunt seem to have accepted this position without question. On Sunday, he told ABC’s George Stephanopolous that Trump “should have turned the documents over,” but why is that? By what logic does the previous holder of the most powerful position in the known universe defer to a paper pusher at the National Archives or the FBI? Why is their opinion more valid than Trump’s even though the Constitution grants them none of the powers he had while he was making these decisions? Even worse, how are they empowered to embroil the country in a legal and political crisis of their own making? I would suggest a very simple answer: They aren’t. The Founders took great care to invest great power in elected office holders, not government functionaries. They ensured that anyone not elected was selected for their position by someone who was, and with the exception of the Courts, the people who staffed the Executive Branch served at the President’s pleasure. There is a clear principle of deferring to elected office holders wherever possible. The prevailing wisdom as propagated by the mainstream media and encapsulated in the affidavit is an untenable inversion and perversion of that principle, one where unelected government workers wield massive powers without any accountability. President’s have their power because the Constitution and the people give it to them. The same cannot be said of the National Archives or the FBI. Deference is both warranted and just in these matters, though it has been almost completely lacking to all of our detriment, but with friends like Senator Blunt who refuse to question false premises and rely on first principles, who needs enemies?