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Federal indictment against Trump just the latest attempt to bring him down

June 18, 2023

In 1920, nearly one million Americans voted for Socialist Party candidate Eugene V. Debs for president even though he was in a prison cell at the Atlanta Federal Penitentiary.

Debs had been convicted two years earlier of violating the Espionage Act of 1917. He was charged for giving a speech that was critical of America’s involvement in World War I. “I know of no reason why the workers should fight for what the capitalists own,” he said.

The government said he was interfering with military enrollment.

Today the Espionage Act of 1917 has been exhumed to charge former president Donald Trump, the 2024 GOP frontrunner, with 37 counts that could put him in prison for 400 years. Trump has gone up in the Republican primary polls since the indictment was announced, a development that First Lady Jill Biden called “shocking.”

Is it? Trump has been hit with baseless, false allegations non-stop since he entered politics — the pee tape, the Russia hoax, the steering wheel, the tax returns. So many accusations. So much nothing.

This federal indictment may also turn out to be nothing, because the rules for handling government documents and classified information are simply different for presidents than for anyone else who works for the government. Presidents have an absolute power to declassify anything, and there is no official process that they must follow to do so. The relevant Supreme Court case is Department of the Navy vs. Egan in 1988, in which the court said, “As Commander-in-Chief of the Army and Navy of the United States,” the president has the “authority to classify and control access to information bearing on national security,” and this authority “flows primarily from this constitutional investment of power in the President, and exists quite apart from any explicit congressional grant.”

Congress did provide for presidents to determine, in their sole discretion, what materials are presidential records and what materials are personal records, and to take with them when they leave the White House whatever personal records they choose to keep. The law is the Presidential Records Act of 1978, and the relevant case is Judicial Watch, Inc. v. National Archives and Records Administration, in the U.S. District Court for the District of Columbia, in 2012.

In this case, Judicial Watch had filed a Freedom of Information Act request for audio tapes of President Bill Clinton, which were recorded by historian Taylor Branch. The tape recorder in the room sometimes captured Clinton’s half of telephone conversations. Judicial Watch demanded that the court declare these tapes “presidential records” under the Presidential Records Act and order the National Archives to take control of the tapes and make them available at the Clinton Presidential Library.

But that didn’t happen.

President Clinton had determined the tapes to be personal records under the Presidential Records Act and he kept them in his sock drawer, a location not under the control of the National Archives and Records Administration. Under the PRA, NARA had no power to override the president’s determination that the tapes were personal records.

And neither did the court.

“The question of whether a court can review a records classification decision under the PRA is not as open and shut as either side suggests,” wrote Judge Amy Berman Jackson.

Citing 44 U.S.C. Section 2203(b), Judge Jackson wrote, “Under the statutory scheme established by the PRA, the decision to segregate personal materials from Presidential records is made by the President, during the President’s term and in his sole discretion.” And further, “Since the President is completely entrusted with the management and even the disposal of Presidential records during his time in office, it would be difficult for this Court to conclude that Congress intended that he would have less authority to do what he pleases with what he considers to be his personal records.”

The whole subject of presidential records management has been complicated by litigation ever since the end of the Nixon administration. However, there’s no dispute that while he was president, Trump had the authority to declassify anything, to make the determination of what records were personal, and to take the personal records with him when he left the White House. No one had the authority to override his decision. And the National Archives had no legal control over the personal records in Trump’s home.

So why did the FBI raid Mar-a-Lago? The House Judiciary Committee is trying to get answers to that question. The Biden administration has not been cooperative.

The FBI says it found documents “with classification markings” at Mar-a-Lago, but documents with classification markings are not necessarily classified documents. The burden of proof is on the government.

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In between the Espionage Act of 1917 and the Presidential Records Act of 1978, there’s another set of laws from the early years of the Cold War, when the modern system of national security classification was created. Trump was not charged under the classification laws, which prohibit negligence or gross negligence in the handling of classified material. The indictment charges Trump with willful retention of national defense information as defined, or not defined, in the Espionage Act.

Perhaps the reason has something to do with all the high-ranking government officials who have not been charged for negligent handling of classified information, none of whom were covered by the Presidential Records Act. As a U.S. senator and as vice president, Joe Biden improperly retained classified documents and kept them in his home, office and garage. Awkward.

Secretary of State Hillary Clinton was so negligent with classified information that some of it ended up on the computer Anthony Weiner used to send sexting messages to teens he met on the internet. Yet there were no search warrants for Chappaqua, and no charges for Clinton.

President Warren G. Harding eventually commuted the sentence of his imprisoned and defeated Socialist Party opponent, Eugene Debs. Today, Debs is remembered for his anti-war speech, and Harding is remembered for the Teapot Dome bribery scandal.

If history doesn’t repeat itself, it certainly rhymes trying.

Write [email protected] and follow her on Twitter @Susan_Shelley

Orange County Register

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Federal indictment against Trump just the latest attempt to bring him down

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