Should some people be above the law?
- Thread starter Crockett
- Start date
A little late to the game, but to answer Crockett's original post, nobody should be above the law. I don't care if Trump is prosecuted. He likely broke the law and deserves what's coming to him. Furthermore, he has done basically everything he can to weaken his case - both in terms of his refusal to return the documents and astoundingly foolish comments he has publicly made since the indictment in the Baier interview. Unbelievable. Whether you agree with his indictment or not, he could not have handled it much worse.
However, while nobody is or should be above the law, how much merit does that argument have when the same department was willing to publicly falsify an element of a criminal statute to justify not prosecuting the 2016 Democratic nominee? The people prosecuting Trump obviously don't give a crap about the rule of law or anybody being above the law, so the argument is pretty worthless at this point.
So what should happen? Ultimately, the country is better off if the rule of law is restored, and he gets prosecuted. But is it really restored without a reckoning of what happened in 2016? I don't think so. It just looks baldly political.
Since politics is the overriding issue rather than justice or the rule of law, what's the political impact? I think it has the potential to increase his likelihood of being the nominee. The Right's instinct is to rally around him. And of course, if he's the nominee, it massively helps Biden in the general election, because it makes Trump the issue in '24 except for Biden's crappy performance in office. Basically, nobody will care about that.
Having said that, I also think Trump's assclownery and needlessly putting himself in legal trouble could make even his supporters look at an alternative who's shooting himself in the foot less. Do we really want a president who's in the slammer for stupidity? As loyal as MAGA people are, I could see it making them think twice and consider Desantis.
However, while nobody is or should be above the law, how much merit does that argument have when the same department was willing to publicly falsify an element of a criminal statute to justify not prosecuting the 2016 Democratic nominee? The people prosecuting Trump obviously don't give a crap about the rule of law or anybody being above the law, so the argument is pretty worthless at this point.
So what should happen? Ultimately, the country is better off if the rule of law is restored, and he gets prosecuted. But is it really restored without a reckoning of what happened in 2016? I don't think so. It just looks baldly political.
Since politics is the overriding issue rather than justice or the rule of law, what's the political impact? I think it has the potential to increase his likelihood of being the nominee. The Right's instinct is to rally around him. And of course, if he's the nominee, it massively helps Biden in the general election, because it makes Trump the issue in '24 except for Biden's crappy performance in office. Basically, nobody will care about that.
Having said that, I also think Trump's assclownery and needlessly putting himself in legal trouble could make even his supporters look at an alternative who's shooting himself in the foot less. Do we really want a president who's in the slammer for stupidity? As loyal as MAGA people are, I could see it making them think twice and consider Desantis.
Same way a particular poster in this thread only seems to poop MY replies. TDS rins strong with some people, and facts don't matter to them.
It's paywalled, but here's a clip of an article by Andrew McCarthy explaining it to a point.
That brings us to the PRA.
That this statute was enacted post-Watergate implies something important, which is made explicit in the text: The PRA has nothing to do with agency-generated records, such as the reporting generated by the Defense Department, the CIA, the NSA, the FBI, and other intelligence agencies. The PRA is not directed at reports of activities carried out by executive agencies that Congress created, authorizes, and funds, and as to which it conducts oversight of their operations (a big part of why record-keeping is required).
Rather, the PRA relates to records that the president himself generates, or personally causes to be generated, during the presidential term.
Specifically, the PRA is directed at materials, such as President Richard Nixon’s White House tapes, which were at the heart of the Watergate scandal that inspired the PRA’s enactment. The PRA endeavors to sort out which of such presidentially generated records belong to the American people because they record government action, and which are the president’s personal property because — though they are created during the presidency and may relate to the presidency — they reflect the president’s personal deliberations, in the nature of, say, a diary.
To the extent that the president generates records that reflect the conduct of his official duties, the PRA broadly defines those as presidential records (under Section 2201[2]) and makes clear that they are owned by the American people, through their government. The president gets to control them during his term, but they are government property (under Section 2202) and must be archived.
The PRA carves out an exception for personal records of the president (under Section 2201[3]). Chunks of this exception (subsections B and C) are not really relevant to our present concerns; they relate to partisan political and electoral activities that “have no relation to or direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the president.” Putting them aside, let’s quote in full, the part of the PRA’s personal records definition that, according to Trump defenders, bears on the documents in the indictment:
The term “personal records” means all documentary materials, or any reasonably segregable portion thereof, of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President. Such term includes—(A) diaries, journals, or other personal notes serving as the functional equivalent of a diary or journal which are not prepared or utilized for, or circulated or communicated in the course of, transacting Government business. [Emphasis added.]
Yeah, I've seen McCarthy's explanation and it's flawed because he's only half-right. The president can not pick and choose other agency records. That's true. Here's the catch- anything sent to the president becomes part of his presidential records without exception.
For example, Trump can not go to another department and go cherry picking. However, if another department sends him or his staff a document he can make it part of his presidential records.
According to Judicial Watch vs NARA the government can not challenge what the president wants to keep.
If you're interested I can show you the statutes.
Yes, let's see the statutes at issue.
Didn't really care for McCarthy much in "St. Elmo's Fire".
Quotes from Judge Jackson in the Judicial Watch vs, NARA case.
"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,"
"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,"
" A decision to challenge a president's decision lies solely with the National Archives and can't be reviewed by a court. If the Archives wants to challenge a decision, that agency and the attorney general can initiate an enforcement mechanism under the law, but it is a civil procedure and has no criminal penalty, "
Not a quote but a good summary:
Judge Jackson ruled that the tapes belonged to Mr. Clinton, even though the discussions included a broad range of presidential matters. The court ruled that the National Archives and Records Administration had no power to “seize control of them” because Mr. Clinton had used his authority under the Presidential Records Act to declare the recordings part of his personal records.
"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,"
"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,"
" A decision to challenge a president's decision lies solely with the National Archives and can't be reviewed by a court. If the Archives wants to challenge a decision, that agency and the attorney general can initiate an enforcement mechanism under the law, but it is a civil procedure and has no criminal penalty, "
Not a quote but a good summary:
Judge Jackson ruled that the tapes belonged to Mr. Clinton, even though the discussions included a broad range of presidential matters. The court ruled that the National Archives and Records Administration had no power to “seize control of them” because Mr. Clinton had used his authority under the Presidential Records Act to declare the recordings part of his personal records.
You liked him better in "Mannequin?"
Hmmm....
Section B states it pretty clearly and doesn't say "but" or "see section blah, blah, blah."
Anything the president creates or receives becomes his personal records
Fortunately for Trump, he's going before Judge Cannon - a very young (and kinda hot) appointee by Trump to the federal bench. If anyone would buy Levin's argument, she would. We'll see if she does, but for her to do so, she would have to accept that the PRA makes the Espionage Act not applicable to the President. I'm open to correction, but I don't see a statutory basis for that. When Congress intends to create exceptions to laws or repeal laws (in part or in whole), it typically does so expressly. To my knowledge, they haven't.
I read the Judicial Watch case, and it's true that the court (which I think bent over backwards for the Clintons, but that's another issue) gives the President very broad discretion in deciding what is a personal record. However, the court's analysis was entirely of the PRA in the context of a civil lawsuit brought under the PRA (and ultimately under FOIA). It wasn't a criminal prosecution brought under the Espionage Act, so it doesn't address the underlying issue in Trump's prosecution.
I think it's also worth noting that if you take this position, there are some pretty bad implications of it that I think most judges would be reluctant to adopt. Obviously, it means that Biden did nothing wrong when he took classified documents. However, think of what else it means. While in office, the President can access any documents he wants. If his mere receipt of those documents means they can be unilaterally deemed his personal records (whether they actually fit the statutory definition or not), keep those documents, and face no criminal prosecution regardless of what they are, what would keep any president from selling them to China, Russia, Iran, or whomever? He can just say, "I've deemed them to be my personal records, and those are mine to do with as I see fit."
There's also an argument that Trump had a duty under the PRA to archive the records with the NARA, because they don't meet the statutory definition of "personal records" (even if they are "presidential records"). (Yes, I know the NARA case goes against this by saying the President has absolute discretion, but like I said, I think they bent over backwards for the Clintons and went further than they needed to.) However, I don't make too big of an issue of it, because this would only mean that Trump violated the PRA and that the Archivist would have a civil remedy to get them back. It wouldn't mean a criminal violation.
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Levin's argument isn't unique. A lot of lawyers are bringing this up and the statute looks to be pretty clear. You can't really separate the PRA from the president in this case regardless of what Jack Smith says either. You'll see the word "unauthorized" in subsection "e" of the Espionage Act. How do get Trump for being unauthorized when the PRA says he is?
It doesn't clear Biden. Biden was a senator when he took most of those documents. Some go back to the mid 70s.
I agree that the rules are perhaps too lax. However, everything the president takes can be taken back by the government by going to civil trial. He's not a dictator. This case shows how despicable the DOJ is. They could have gone to court by following the law and gotten the records back. They didn't give a damn about the records. This was just done to get Trump.
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bishophorn
500+ Posts
Nothing personal to you on the pooping.
Just stating facts.
Indeed he did.
Horn2RunAgain
2,500+ Posts
Ok I have to jump in here with my non lawyer self. If Trump or anyone sells sensitive documents to China, that's a crime. But that obviously didn't happen. Owning sensitive documents is one thing. Selling them to an adversary is another animal altogether
My strong guess is many (not some. Many) people that post on this board "own" documents or information that would be punishable under law if sold to an adversary. That, is not a crime
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Because the PRA doesn't say it's authorized. It sets forth criteria he is supposed to follow when determining if something is a personal record. The lack of a remedy for a civil plaintiff (like Judicial Watch) or even the Archivist (which I think the trial court got wrong) to enforce the PRA isn't the same as explicit authorization. Something can be "unauthorized" and even criminal but still lack a civil remedy.
What he took as a senator, you're right. But the PRA applies to the VP, and I think (could be wrong) that most of what he had was while he was VP.
Well, Judge Jackson doesn't seem to think so. This is what I mean when I say she bent over backwards for the Clintons. Had she found a remedy for the NARA, at least at some point, there could have been discovery on the materials in question, and the court could have reached the merits. But to protect the Clintons, she basically said nobody anywhere can do anything to force the documents back. Again, I think she took it too far.
But consider the consequence of this. If the government can take Trump to court and second-guess his characterization of the documents, then that means his discretion isn't absolute. If his discretion isn't absolute, then the documents can be "unauthorized," which means the Espionage Act can still apply.
Of course, it would be a crime, because the argument that his control of these documents is absolute would fail in court. However, if it is absolute, then I don't see why it wouldn't be legal to sell them.
Bear in mind that he can already declassify things - meaning he can make it legal to make anything public (and therefore available to China). Well, if you also give him absolute ownership of something, and it's not classified, then I don't see why he couldn't sell it to China. It's no different than if he wanted to sell his diary to China.
Here's another lawyer and authorization:
So, Biden was a VP back in the mid 70's, Deez?
The VP can't keep classified material.
Consider sponsoring.
Here's another lawyer and authorization:
So, Biden was a VP back in the mid 70's, Deez?
The VP can't keep classified material.
I'm familiar with Donofrio. He made a name for himself back in '08 when he sued to have Obama deemed ineligible (not on the fake birth certificate theory but on the natural born citizen theory). On this, I don't totally follow his logic. He says he's going to draft a sample Motion to Dismiss and post it. I'll take a look at it when he does. Either way, if the argument has a lot of merit, Trump is before the right judge to hear it.
As for the VP not being able to keep classified information, I'm not sure why he wouldn't be. If the PRA allows the President to and the PRA applies to the VP, then why not?
Judge Cannon was already soured on the DOJ the last time they were in her courtroom. After the Biden/DOJ fiasco we were introduced to yesterday she won't take them seriously. With the ongoing leaks, abusing the crime-fraud exception, etc.. I wouldn't be surprised she dismisses this case herself.
Favour? How long have you been in the UK? I vote Republican, but blue is my favourite colour.
I do agree that she will be criticized by both sides, no matter the ruling. This week Dems chanted "Shame, Shame, Shame" after the Schiff censure vote.
Not aimed at Adam Schiff, of course.
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