Presidential Records Act v. Espionage Act
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The Mike Davis commentary explains (inferentially) that the Espionage Act cannot apply to personal documents, because they are not "Presidential documents" nor "Government documents." Nor does the Presidential Record Act prevent the President from retaining custody over classified Presidential documents.
Basically, none of this can touch the President, because one branch of government (Legislative/Congress) cannot dictate the behavior of another branch (Executive/President). Any such regulation comes from the Constitution.
I understand they become personal records once they leave the WH and the president has sole discretion to decide what is and isn’t personal. Nobody else has the authority to label any of those records national security related and demand their return.
Exactly. All authority in the Executive branch reposes in the President. He is not subordinate to any Executive agency or even an act of Congress. The agencies cannot tell him what he is allowed to see, and he is the ultimate classification / declassification authority.
He's pulling a sleight of hand
This is absolutely true
This part is false
It absolutely does prevent a former president from retaining custody of presidential documents. That's the reason the law was created.
I learned two things tonight.
One Classified documents are often not Presidential documents because there's and exclusion in the law for agency documents.
The second thing is Trump's lawyers are upset with Tom Fitton for pushing the same argument as Davis
Trump's own lawyers felt Trump could have avoided an indictment if they negotiated to return all the documents. They feel Fitton got Trump into this mess. Fitton is not a lawyer, remember. And Fitton is a witness in this case.
Your counterargument falls apart under Article 2 of the Constitution, which vests ALL executive powers in the President. The president ultimately has the authority to dictate to all agencies beneath him what is and is not vital to national security, and what is or is not an authorized location. The agencies do not hold authority over the President. The 102 documents he took with him, if they are all pertaining to the alphabet soup spying on him during his campaign, were declassified before he left office.
Additionally, the 2012 case law resulting from the sock drawer case establishes that it is the President's responsibility and sole authority to separate personal records from presidential records. No other agency under the executive branch can supersede that authority.
You make this seem like it happens on the fly. Presidents still have to follow laws and executive orders.
Which means they'll be evidence of if certain things happened or there won't be. It's not a constitutional argument.
It's an argument of did this happen before he left the presidency or not.
The indictment alleges at all 31 documents are classified to this day.
Also Trump's lawyers do not think the sock drawer case applies here.
Only where laws and executive orders apply to them. If there is no legal procedure which concerns the de-classification of documents, then it stands to reason that the President only needs to give the order, which has been proven to be done for at least some of the documents that were seized.
The Clinton case set the precedent that the President gets to keep whatever he wants, without qualification as to classification status (tape recordings of classified conversations). The same thing was true for Obama, who basically left with a storehouse of documents.
There is another legal perspective that this law pertains to the employees and officers of the Executive branch, but not the President...as it cannot be the case that the Legislative branch directs the President (personification of the Executive branch) by enactment of legislation. That would breach the co-equal powers and privileges specified in the Constitution.
There was a video posted previously on GA (50 minutes into a 2 1/2 hour length) where an evidently savvy lawyer elaborated on something like half a dozen causes for outright dismissal, based on the Constitutional immunity of the President from the alleged laws. His basic point is that it can't be the case that the Deep State gets to determine what the President is to see; the rule of superiority is that the President alone determines what he gets to see, as he is the apex of authority in the Executive branch.
I am concerned that Trump may not be served well by his lawyers. They may not be willing to push this to a Constitutional confrontation, which is where the matter lies.