It’s strange, but sometimes you can see something right in front of you, yet not see it for what it is. This post discusses the hidden dimensions of the present crisis involving the documents held by Trump and other politicians, and the stakes of the conflict at work.
I have opinions, of course, on whether or not Donald Trump is guilty of anything and how the trials will play out. But this is not for playing lawyer, but for wearing my historian hat, because I have not seen or heard anyone discuss the broader aspects of this situation. There are elements of those dimensions present in the facts of the matter, yet they have not been discussed elsewhere. So with that said, here is how I see the matter.
I begin by looking at the fact that so many politicians had classified documents in their possession. Also, if they are telling the truth, at least some of these politicians were unaware that they had classified documents in their residence/office. Further, media reports from the National Archives have revealed – in passing – that the Archives were not aware that those documents were in personal possession. Yet the media remains strangely uninterested in those facts.
So here, briefly, are the hidden dimensions of this situation:
- Presidents of the United States, even after they leave office, have unique prestige and authority with regard to national affairs;
- ‘Classified’ has different de facto meanings, depending on a number of factors;
- The National Archives have, historically, operated under the rules and conditions of the Presidential Records Act of 1978;
- There is no registry to record/track all classified documents, due not only to the sheer volume of classified documents in existence, but also due to the many ways a document may become classified or declassified;
- When a President leaves office, the General Services Administration (GSA) packs and moves all sorts of items, from personal belongings to personal writings, to other documents present in the White House at the time of the move; and
- Prior to now, no incumbent President has used his office to attack and prosecute a former President for any reason or motive.
So, stop for a moment to consider each of those six points, then let’s move on to examine them.
First, about Presidents. There is a fiction that when a President leaves office, he becomes just an ordinary citizen, same as anyone else. But even a cursory consideration of a President’s work in even a single term, makes clear that he will never be what he was before he became President. A President charts the course of the nation while he sits in that chair, and is by definition an expert on the decisions he makes.
Also, Presidents do not lose their value when they leave office. It should be remembered that when the economy stumbled under President Biden, he reached out to former President Obama for advice and direction. President George W Bush regularly consulted with his father, George HW Bush, on a number of matters. It’s not limited to same-party consultation, either. President Clinton asked former President Nixon for advice on foreign policy. This matters because the former Presidents consulted necessarily were given access to privileged data in order to give informed opinions. Over and over, former Presidents have been given access to restricted, even secret data even after they have left office. The fact that the media does not emphasize this fact does not change that it is so.
Second, the media has made much of the word ‘classified’, where Donald Trump is concerned. To hear the media tell it, Trump was either obscenely careless or worse, somehow planning nefarious and diabolical acts with the documents in question.
For example, the media has repeatedly brought up the possibility that nuclear weapons secrets were included in the documents. Does even the most visceral hater of Donald Trump actually believe that the 45th President of the United States was planning to attack the United States, or sell out the security of the nation to foreign powers? Nothing at all supports even the faintest hint of something like that, and the media has acted shamefully in promoting such slander.
I’d like to think the media is not malicious here, they are simply being stupid. All the talk about Trump’s legal troubles are based on the assumption that Trump’s responsibility for classified documents is comparable to, say, the FBI or the Army. But that is not the case.
When military or federal law enforcement people are to be given access to sensitive information, they first undergo screening to determine a clearance level. Some may only review confidential documents, some may see secret documents, and some are given Top Secret clearance. But even then, clearance is clearly defined and therefore limited for each person, and they sign documents confirming their understanding of those limits, and the penalties for violating those rules. Politicians at high levels, however, do not undergo such security screening; their position entitles them to see and handle sensitive information regardless of their background, and those officials also do not sign any agreement where they are advised of limits or penalties. They are given a special category of clearance, precisely because they are politicians and not professional military or law enforcement. This was one key reason why Hillary Clinton did not face charges for her private server and destruction of emails – she never signed an agreement promising to abode by such security rules. It doesn’t mean she couldn’t face prosecution, but it makes the case harder to prosecute. This would be even more the case for former Presidents. Strange as it may sound, what was Top Secret for an FBI official might not be restricted at all for a President, even after leaving office.
Also, the President’s authority to classify and declassify documents means that even a cover page declaring a document to be restricted does not make it so for the President. In fact, one reason there should have been a Special Master present at the Mar a Lago raid, was that it is entirely possible that there were documents present which Trump could legally see and handle, but which were beyond the authority of the raiding agents to see or handle.
With that, we move on to the matter of the National Archives. There is a historical value to the writings and documents from past Presidential Administrations, for which reason the Presidential Records Act was created.
The media, which has always seen Trump as both a source of ratings but also a target for every smear they could imagine, has focused on the most serious charges as if they were somehow true just for being alleged.
Frankly, the very idea of charging a former President of the United States with Espionage is the sort of absurd claim that in no way stands a serious examination. But Trump’s enemies had a big problem, because the Presidential Records Act only allows for a fine for breaking its rules. You need a different law if you want to shove Trump into prison. And as we have seen already, Biden’s Department of ‘Justice’ is perfectly happy to employ dirty tactics to advance Democrats’ power.
But the point here, is that as much as the Democrats want it not to be so, for 45 years the PRA has defined the rules on handling Presidential documents, and settling disputes. To go after Trump, the Department of Justice has had to abandon precedent and standards and apply laws never meant to be used this way. Not to mention trying to leverage a process offense into a felony violation.
Next is the problem of the volume of documents involved. From one perspective, it makes sense that there is no single registry for all classified documents; for one thing, it would be functionally impossible to have single entity know about every classified document creation, and if such a list was somehow able to be created, that list would be incredibly sensitive and by definition could not be made available to most law enforcement or government agents.
This problem only gets worse, when you consider that classification is not a static condition. For example, at the time they were created the plans for the Normandy Invasion of June 1944 were extremely sensitive and therefore held the highest security classification. But today those same documents are not even restricted but are used in historical studies and books. On the other hand, despite their age some of the experiments used during the Manhattan Project are still kept secret because of the dangers of letting anyone learn how to build an atomic bomb beyond the people who already have that knowledge.
The trouble here, is that it’s not always simple to know which documents become less sensitive over time and which remain so. Part of that is Methods and Sources directly involved in certain documents, and part of that if what is already in the public domain. For example, it’s no shock to know that the United States at one time had nuclear missiles stationed in Turkey, but it would be a very big shock if the public discovered – hypothetically – that the United States had sabotaged at least a portion of Russia’s ICBM force for a period of time. That is, there are certain facts which the US government knows, but releasing that information to the general public would have significant and possible unintended effects.
With regard to Trump, we keep hearing vague insinuations that Trump seriously threatened our National Defense, but the same people keep talking about possible plea bargains, which would not happen if Trump’s actions were really that serious. Unless and until I hear specifics that support claiming this is more than a dispute about document control, that’s where I am standing on this.
That brings us to the important question of chain-of-custody. Trump’s accusers would have you believe that the former President walked through the White House grabbing documents and stuffing them into boxes. That’s not at all what happened.
The US Government uses its own company, the General Services Administration, for various tasks like moving personal belongings and papers. One set of employees boxes up everything, and another drives them from the White House to the new office or residence, and finally they are unloaded. Many of those boxes lack much in the way of detail, meaning you won’t even know what is where until you take time to go through them.
That, in a nutshell, is why so many former Presidents had documents they did not know about. And that is why former President Trump did not return everything that the National Archives demanded.
Well, that and Trump did not like the way the Archives director demanded papers instead of asking, and the Archives director decided a pissing match was a great way to settle the matter.
And that long squabble will end up in court because the sitting President is childish and petty enough to use the DOJ as his attack dogs.