Posted on 08/04/2023 11:05:36 AM PDT by XRdsRev
For discussion. I have wondered if the Espionage Act covers ex Presidents in regard to their Presidential Records. In my opinion there may be a serious argument that they may not be governed by the Esionage Act based on the following…
1) prior to the implementation of the Presidential Records Act (PRA passed in 1978 implemented in 1981), ex Presidents routinely took possession of their Presidential records. (From National Archives website “Prior to the Presidential Records Act of 1978, which first applied to President Reagan, all of the official records of the White House were considered the personal property of the President (from Presidents Washington to Carter)”. These records sometimes ended up in Presidential libraries but often until a library was established, these records were under the ex President’s personal control.
2) we know that Presidential records removed by ex Presidents often included National Defense Information (the Eisenhower Library is still declassifying materials from that administration). This information is of the type covered by the Espionage Act which was passed in 1917.
3). Presidents as elected officials, do not obtain Security Clearances. As Chief Executives and Commanders in Chief, they are considered automatically to have the highest security authorization. This authorization is not officially revoked once a President leaves office and subsequent administrations can and have consulted with ex Presidents on matters which involve National Security or Classified I formation.
Since ex Presidents after 1917 up until 1981, routinely took possession of their Presidential Records and those records were as per NARA, considered property of the ex President, and those records could and did contain National Security Information of the exact type covered by the Espionage Act, the inference is that these ex Presidents remained “authorized” to possess National Defense Information.
I am not aware of any regulation including the Presidential Records Act that rescinds an ex President’s authorization to have National Defense Information.
Since ex Presidents still retain in perpetuity, authorization to possess And access National Defense Information, it stands to reason that the Espionage Act does not apply to ex Presidents.
If the Espionage Act can be shown to not apply to ex Presidents (as history seems to clearly show it does not), it is impossible to charge an ex President with violating the Espionage Act by simply possessing and accessing National Defense Information related to their administration.
If as in Trump’s case, a potential violation of the Espionage Act is the lynchpin felony offense for also charging him with obstruction of Justice, are these charges even valid ???
Would like to hear other opinions.
I can not answer that, here are some thoughts.
The records are government records, so the government has a right to them, probably the originals. If they are electronic records, or printouts, then they are already copies, especially if the government has the original electronic documents.
I think the question really is: Can a former President use knowledge he obtained as POTUS to further political or financial gains? Therein must be a fine line and a high bar of proof. Selling those documents would seem dangerous to allow, like including it in emails to get foreign contracts or cash. However, using that knowledge for political purposes would force you to arrest every POTUS in history. Sudden windfall of post POTUS cash, with people accessing the documents, would be immoral, and may be prosecutable. I think that might be a high burden of proof as well.
When the government is supposed to pack the POTUS records, and we the taxpayers pay an agency to do so, if documents that are vital to national security are released, blame should go to the government. If a POTUS takes records of government illegal activity, that’s perfectly legal IMHO, and potentially necessary.
What I am saying, is that the POTUS represents a special position, and outside of selling records or using them for financial gain, it’s legal, IMHO. Selling information, or using it to coerce foreign or domestic governments, probably not legal but would be a high bar to prove. Certainly, if the records demonstrate illegal US Government activity or plans, that is something that should be kept and released at discretion of the former POTUS.
Who knows, they might keep it all in a sock drawer…….
Legally and constitutionally maybe. But it is an excellent debate question to see how the likes of Pence, Christi, Hutchinson and others would answer.
I think if I were one of the Grand Jurors and I found out that Jack “Dog Feces” Smith had not provided the Presidential Records Act and the Judicial Watch / Clinton Case, I would be approaching the Judge overseeing the Grand Jury to have the prosecutor sanctioned and the indictment thrown out.
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