Posted on 09/20/2022 9:01:31 PM PDT by SeekAndFind
Good question.
I think:
If they weren’t declassified when the FBI first saw them (and only recommended an extra lock on the door), then why didn’t they seize them then?
How can you prove you declassified what you don’t know they have? Since when does an American have to prove their innocence? The government needs to prove he didn’t declassify.
You are more than correct. You made the “earth shaking” point that under our form of law the prosecution is required to prove its case. The defendant is not require to prove he is innocent....he is only required to rebut to the satisfaction of the jurors and the court any false or misleading claims by the prosecution.
Everyone in every courthouse knows that is a basic principle of our laws and our form of government.
That statement on the part of this judge is an ominous clue as to his position on this matter.
There's a great series of videos on Youtube that explains why you should never say ANYTHING to the police.
The most important reason I recall is this: "Even if you tell the absolute truth, you may be mistakenly contradicted by a credible witness whose testimony might convince a jury that you are lying."
I recall a discussion regarding the damage claimed by a plaintiff who loaned a wheelbarrow. The defense could consist of any of several arguments.
1) The defendant never borrowed the wheelbarrow.
2) The defendant borrowed the wheelbarrow and returned it in good condition.
3) The wheelbarrow was already damaged when the defendant borrowed it.
If damaging the wheelbarrow was a crime, then the prosecutor would have to prove ALL of the above claims to be false. The defendant would not have the burden of proof.
Trump's team is similarly positioned. It is not their burden to prove that Trump did not declassify any particular document. Instead, my expectation is that a judge at a trial might have to instruct the jury as to whether or not a former President has the authority, perhaps while still in office, to declassify and possess documents which at some time in the past had been classified.
Trump's lawyers are simply not willing to do the job that some potential prosecutor might be obligated to do in the future.
I see two things they want:
(1) At least a list, and possibly a description of every document they have which they claim is classified, and
(2) No hidden documents. If at some later time they try to introduce a document which they have not told Team Trump about, the Special Master will be able to verify they never showed that document to him either.
They have already achieved what I would have thought was impossible -- they have established the venue as Florida and not Washington, D.C. A Washington jury would be incredibly biased against DJT. In Florida he will get a much more fair chance. A jury with a few Hispanics of Cuban heritage would appreciate DJT.
It's simple, but at the same time it's complicated.
Yes, the President can look at a classified document and say "this is now declassified" and that is perfectly legal. In fact, that is how most "leaks" to the media are fed to the media on background, they are approved leaks, which is why they don't end up in people going to jail. Yes, the president could have had what he has characterized as a "standing order" to treat all documents that went to Mar a Lago as automatically declassified, that is super unusual, but within the President's authority.
Further to this, even if Trump never declared something declassified, it is within the President's authority to take a piece of classified information and share it, still treating it as classified, with a foreign government... even an adversarial one. Politically, it could be considered treasonous, but legally, not disallowed. I'm not saying that is anything that occurred in this case, but given the accusations by NeverTrump, it's worth stating. By the way, this is exactly what happens when the President (or much more frequently SecState, an Ambassador, or the Cia director) steps in to make personal appeals to foreign leaders to stop terrorist acts or avoid war. "I know you are about to do X, our intelligence community has proof. Don't do X and we won't be forced to respond militarily."
There is also issues around physical copies of reports versus digital copies, and sources and methods... not really important for the point I want to make, but it would be very unusual for Trump to have the "only copy" of anything, and when a report gets assembled for an executive customer, it's written in a way that helps the executive the most. Knowing where and how the Intel is gathered is very rarely discussed, because it doesn't need to be. Can an adversary figure it out if they know "what" was in the report? Possibly, but that's an argument for a different thread.
Now, the complicated part happened on Jan 21, 2021. Trump is no longer Potus, his files should be safely stored away in Mar a Lago in accordance with established and agreed upon procedures, but there are these files. Some nebbish in the National Archives decides he can make Trump's life hell out of office and deny him access to as much material from his term as possible so there will never be a Trump Presidential Library of any substance. Nebbish person figures out that a number of reports marked classified or that should have copies for the archives according to the Presidential Records Act are in Florida amd calls up the DoJ. Sure enough, files marked as classified are there. Some are returned ro the archives, some, curiously, are not. An investigation is launched with the goal of finally putting Trump in handcuffs even though the Trump organization is working with the Archives and cooperating.
Raid happens. Files found with markings. Trump claims they are covered under his prior standing order, which, again, was legitimate while he was Potus, but also very unusual compared to how prior presidents handled things.
For whatever reason, proof of this standing order has apparently yet to be provided to the court. Yes, there have been media statements, but those are different than sworn statements. Team Trump is also curiously not just showing the judge a memo from 2017 or whenever that should have cleared this all up. That doesn't make things easy for the judge (who is not authorized by the president to decide what is classified or not classified... different branch of government and all).
If you aren't able to determine classified information, the rules say you treat existing markings as valid. There is a process to challenge markings, but that's for people down the food chain from potus, and that's not what is being done here.
While we are at it, if something has been declassified and not released out into the world, it can be reclassified. That would take Biden's intervention, or someone acting directly on Biden's authority, and even now it would be very unusual for a president to not give deference to his predecessor on these things, and Trump was allowed to store classified Presidential records on site as part of his office of former president stuff.
The special master concerns could be cleared up with sworn proof of this "standing order". But, I guess the Trump legal position is that the raid and seizure was illegitimate in the first place, so it is the government's obligation to prove they took classified documents legitimately first. Absent that memo though, which is kind of being presented as a Catch 22, the government cam lean on that search warrant, which was overly broad and never should have been approved by that judge... who should have recused himself and never even heard the request for the warrant...
This is a very long way of saying the judge seems to be following a procedure, the Trump team is trying to prevent giving any of this raid legitimacy, and the judge could have an easier time of it if given proof of the blanket declassification... which would have been legitimate at the time but also not necessarily durable after Trump left office and the whole thing doesn't address if the raid was yet another effort to launch an investigation to find a crime to pin on Trump.
Sec. 1.7. Classification Prohibitions and Limitations.
(a) In no case shall information be classified,
continue to be maintained as classified,
or fail to be declassified in order to:
(1) conceal violations of law, inefficiency, or administrative error;
(2) prevent embarrassment to a person, organization, or agency;
(3) restrain competition; or
(4) prevent or delay the release of information that does not require protection in the interest of the national security.
Part 3 - Declassification and Downgrading
Sec. 3.1. Authority for Declassification. (a) Information shall be declassified as soon as it no longer meets the standards for classification under this order.
(b) Information shall be declassified or downgraded by:
(1) the official who authorized the original classification, if that official is still serving in the same position and has original classification authority;
(2) the originator’s current successor in function, if that individual has original classification authority;
(3) a supervisory official of either the originator or his or her successor in function, if the supervisory official has original classification authority;
Sec. 3.2. Transferred Records.
(a) In the case of classified records transferred in conjunction with a transfer of functions, and not merely for storage purposes, the receiving agency shall be deemed to be the originating agency for purposes of this order.
Part 4 - Safeguarding
Sec. 4.1. General Restrictions on Access.
(a) A person may have access to classified information provided that:
(1) a favorable determination of eligibility for access has been made by an agency head or the agency head’s designee;
(2) the person has signed an approved nondisclosure agreement; and
(3) the person has a need to know the information
....
(d) Classified information may not be removed from official premises without proper authorization.
(e) Persons authorized to disseminate classified information outside the executive branch shall ensure the protection of the information in a manner equivalent to that provided within the executive branch.
Sec. 4.2 Distribution Controls.
(a) The head of each agency shall establish procedures in accordance with applicable law and consistent with directives issued pursuant to this order to ensure that classified information is accessible to the maximum extent possible by individuals who meet the criteria set forth in section 4.1(a) of this order.
https://www.archives.gov/isoo/policy-documents/cnsi-eo.html
PART 3—DECLASSIFICATION AND DOWNGRADING
Sec. 3.1. Authority for Declassification. (a) Information shall be declassified as soon as it no longer meets the standards for classification under this order.
(b) It is presumed that information that continues to meet the classification requirements under this order requires continued protection. In some exceptional cases, however, the need to protect such information may be outweighed by the public interest in disclosure of the information, and in these cases the information should be declassified. When such questions arise, they shall be referred to the agency head or the senior agency official. That official will determine, as an exercise of discretion, whether the public interest in disclosure outweighs the damage to the national security that might reasonably be expected from disclosure. This provision does not:
(1) amplify or modify the substantive criteria or procedures for classification; or
(2) create any substantive or procedural rights subject to judicial review.
(d) The originating agency shall take all reasonable steps to declassify classified information contained in records determined to have permanent historical value before they are accessioned into the National Archives.
https://sgp.fas.org/bush/eoamend.html
Kash Patel: “… we did this big declass at the end of the Trump administration. And his cronies actually bureaucratically stopped the declassification process … [Trump] said ‘declassify this mountain of documents’ he walked out and his cronies were like ‘well, we’re not going to do that.’
It was sufficient to give the order IMO.
There are apparently other persons knowledgeable about Trump’s declassification order other than just Trump and Patel.
If he ordered it Declassified and the Fedzilla never followed through on it, is it declassified?
Sounds like it could be settled if Trump would just provide the document he signed making the items declassified. Seems very easy to settle this.
Oh please. Your telling me the President of the United States didn’t make a copy of the declassified document he signed? Give me a break. That’s cover your butt 101. He’s a businessman. He knows he hast to have copies of everything.
The court found that the papers Bill Clinton hid in his sock drawer were declassified by his actions.
Bob Woodward had 25 letters from Kim in his book. They are declassified (if they were) when revealed.
My question is...how many of these documents are actual “originals”. Surely, many are not. The library has a shredder, too.
Amongst other things from him Trump wants a specific list of what FBI took. Not knowing that, they can’t respond with their best answers. A generic answer might cover most cases, but if exceptions require different ones they can’t swear to the court the generic as covering all cases without potentially being indicted on the exceptions for perjury. So they defer their defense until they know just what they’re defending.
Because the government must prove that there are documents that meet these requirements. You are innocent until proven guilty. The prosecution has to say why they believe the documents don't count under a blanket declassification. The defense only has to show that the prosecution is wrong. The defense does not have to prove innocence. Which is what the Special Master is asking for.
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