Mar-A-Lago

 

We're about 6 weeks out from the FBI raid on the Presidential dwelling on Florida's Atlantic coast, and it may be that all the dust that's going to settle — or most of it, anyway — has already done so.  Time to opine.

What we have here, net, are employees of the Executive Branch claiming the power to overrule their boss, the Chief Executive of the United States, the President.  Yes, we're dealing here with a former President who no longer has the authority to classify or declassify, but who once did.  Those employees of the Executive Branch now hold that any declassifications that happened on the former President's watch reverted to the status quo ante as of January 20th, 2021.  That's nonsense.

The Supreme Court has already come down on this issue in Navy v. Egan, and they were quite clear that the Constitution vests an elected President with far-ranging power over the classification status of both documents and persons.

"But," you object, "aren't there rules and procedures surrounding that topic?"  Yes, there are, and employees of the Executive Branch are required, as a condition of employment, to adhere to them.

The President, however, is not 'an employee of the Executive Branch'.  The President is the Executive.  The voters did that.  The Executive Branch exists to carry out the policies of the Chief Executive.  The Constitution did that.

The net effect, the 'takeaway' from all this, is that the President sets the rules, and everyone else follows the rules.  Because of that (in SCOTUS' words) 'Constitutional investment' of the President, it is a legal impossibility for any President, current or former, to be in possession of classified documents that existed at the end of that President's term of office.  The simple act of removing such from the White House ipso facto declassifies them.

It's also worth noting that the originals remain in the place where they were created, and only copies are distributed.  If a document required a Presidential signature, it is returned to its origin point after signing.  Therefore, Trump did not have any originals at Mar-A-Lago.  They were all copies, with the originals still residing in their permanent home.  The FBI wasn't there to reacquire irreplaceable fragments of American History.  They were there to deprive Trump of declassified documents that, absent some bizarre legal contortions, he was entitled to possess.  This seems intuitively obvious despite certain judges deciding that "separation of powers" doesn't really apply here.

In any case, Obama still has a warehouse full (really!) of documents he took with him on January 20th 2017, and there hasn't been any effort at all to reacquire those.  If the FBI were to apply whatever rules they're using here evenly across the board, there wouldn't be any such thing as 'a Presidential library'.  Why are the documents in Trump's possession so important that they can't be allowed into the Trump Presidential Library?  There are very few categories that plausibly fit the behavior we watched last August 8th.  Even voicing any of them risks being branded as a 'conspiracy theorist'.

The difference between 'conspiracy theory' and 'breaking news' is now about three weeks.  Pundits have already started suggesting that what the FBI wanted from Mar-A-Lago were documents related to the FBI's (active) involvement in the Russian Collusion accusations, documents that would prove the FBI to be irreparably corrupt.

Hell, who needs documents for that?

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Update July 15, 2024:  Judge Aileen Cannon today dismissed the Mar-A-Lago Documents case on the grounds that Special Prosecutor Jack Smith was appointed in violation of the Constitution's Appointments clause and its Appropriations clause.  Case Closed.