October 6, 2022

More of the Same

Spectator
By Stephen Tuttle | Aug. 27, 2022

A Republican candidate for Congress in western New York says Attorney General Merrick Garland should be executed. (He subsequently claimed he was just being facetious.) A Republican candidate for the Florida House says he will introduce legislation making it legal to shoot federal agents from the FBI, ATF, and IRS on sight.

This lunacy—and lunacy is the kindest way to describe the behavior—is a continuation of an onslaught of attacks on our institutions from the top on down for the last half-dozen years. The latest barrage comes on the heels of a warrant being served on former president Donald Trump’s Florida home in search of documents he took with him when he left the White House and, for reasons known only to him, did not return when asked and then subpoenaed.

Let’s back up.

In 1978, the Presidential Records Act (PRA) was passed in a bipartisan effort by Congress. Those records, previously considered the private property of the president when he left office, became public property under the control of the National Archives and Records Administration (NARA) starting in 1981. The law was comprehensive, defining presidential records as all books, correspondence, memoranda, documents, papers, pamphlets, works of art, models, pictures, photographs, plats, maps, films, and motion pictures, including but not limited to audio and visual records, or other electronic or mechanical recordings, whether in analog, digital, or any other form.

There were some exceptions for records involving attorney/client communications or those covered by executive privilege, but the president is not the final arbiter of those exceptions—the National Archivist is. In other words, Donald Trump was not entitled to most of the documents he took because they belong to the American public, not him.

The NARA had already recovered 15 boxes of documents from Florida and had been informed by someone identified only as a “Trump insider” there were more, including some that were classified. They were not returned when the Archives requested, a subsequent subpoena was ignored, and a Trump lawyer claimed there were no classified documents in Trump’s possession.

(Whether the documents were classified or not is not germane to the PRA; all records must be turned over.)

Concerned about what might be in those documents, a request for a search warrant was granted by a magistrate based on sufficient probable cause. The search warrant was served by FBI agents who did not “break into” or “ransack” the former president’s Mar-a-Lago home. And—surprise, surprise—they found boxes of additional presidential records. According to the National Archives, Trump took 700 classified pages with him to Florida, including some marked near the top of the top-secret pyramid.

Trump then claimed he had “declassified” all the documents he took, or they were all somehow privileged, or some other excuse.

Though it is technically possible for a president to arbitrarily and independently declassify documents, making them available to the general public, it would be incredibly reckless. There are plenty of reasons an agency which classified documents would want them to remain that way. Such declassification might impede an ongoing investigation, might reveal the identities of and endanger human assets, or might expose military planning or strategies or new weapons systems. It’s why military and law enforcement officials have always, until now, been consulted before any document is declassified. Those documents are then so marked, but none of that transpired this time.

So, always able to expertly deflect from yet another scandal, Trump’s allies decided to play the What About Game.

Well, what about Hillary and her private server and all those lost emails? She was not the president, there was no detectable national security threat, and though her record keeping was called “careless,” she was not prosecuted. That decision was made by the Attorney General and the FBI Director, both of whom were Trump appointees.

Well, then, what about Hunter Biden and his laptop? He is not the president or any elected or appointed official, is still under investigation, and his actions and Trump’s are not comparable in any way.

What about Obama taking more than 30 million files to Chicago? That one is just a bald-faced lie being distributed by Trump supporters. Obama's files were properly turned over according to the National Archives. Those that were, and still are, classified are in a secure location in Washington, the rest in an Archives warehouse in Chicago.

Trump very well may not have read most of those files or even known what was in them. He could have and should have just said, “Oops,” and returned them. There would have been no search warrant and surely no negative consequence. But he preferred to play the victim and continue inflaming his already irrational base. More division, more anger, more dishonesty.

More of the same.

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