The National  Memo Logo

Smart. Sharp. Funny. Fearless.

Monday, December 09, 2019

Tag: trump document theft

Trump's Big Day With Special Master Doesn't Go Well (For Him)

Senior Judge Raymond Dearie, sitting in the Eastern District of New York in Brooklyn, fired a warning shot over Trump’s head in his first act as special master in the case of the 11,000 documents Trump removed from the White House upon leaving the presidency, which he refused for months to return to the government as required by law.

At issue before Judge Aileen Cannon in Florida, and now before the 11th Circuit Court of Appeals in Atlanta in the appeal filed by the Department of Justice last Friday, are 100 classified folders containing an unknown number of secret documents which the DOJ wants the Circuit Court to release from Cannon’s stay restricting their use by the FBI and DOJ. Trump has publicly claimed that he declassified the documents in question in multiple tweets and other public statements, but notably, his lawyers have refrained from making the same claim in their filings opposing the DOJ’s motion to release them for use in its criminal investigation of Trump.

Trump’s lawyers have called the classified documents Trump held in Mar a Lago “alleged classified documents,” and Judge Cannon has seemed to question whether the documents are indeed classified as their markings would indicate and which the DOJ has said they are.

In Dearie’s letter to both the Trump lawyers and the DOJ yesterday laying out a proposed schedule for his work as special master, the judge in effect told Trump to put up or shut up about declassifying the secret documents he held. In their response to the judge’s proposed schedule, Trump’s lawyers squawked loudly: “The Draft Plan requires that the Plaintiff disclose specific information regarding declassification to the Court and to the Government,” Trump’s lawyers wrote. “The Special Master process will have forced the Plaintiff to fully and specifically disclose a defense to the merits of any subsequent indictment without such a requirement being evident in the District Court’s order.”

Got that? For the first time, Trump has allowed his lawyers to acknowledge that he faces a potential indictment, and he does not want to be forced to show his hand before the indictment comes down and the prosecution demands that he do so.

In plain English, Trump and his lawyers are understandably reluctant to answer the judge about whether or not Trump declassified the documents held at Mar a Lago because Judge Dearies has faced them with the option of either telling the truth or lying. Having gotten away with lying in public for his entire adult life, Trump is clearly uncomfortable with the position he has put himself in: legal proceedings in court, before a judge, require that parties tell the truth, and lies told by either the plaintiff – Trump – or his lawyers are punishable.

Trump’s problem is that he took a whole slew of classified documents out of the White House, which the government subsequently seized, but he has no corresponding documents proving his statements that he declassified them. If they had been declassified, the documents themselves would have markings declaring them to be “declassified.” None of the documents seized from Mar a Lago or turned over to the National Archives or to the DOJ have such markings.

Declassification is a complicated and lengthy process. If a document is to be declassified, it must be sent to the agency which first classified it to be reviewed. At this point, the agency can object to the declassification and provide reasons why it should remain secret. If there are no objections, the document is sent around to other intelligence agencies or to the Department of Defense, if the DOD had used the document, and those agencies get an opportunity to review it and object to its declassification on the grounds that it might compromise ongoing operations, endanger a human source used in the production of the document, or reveal sources and methods of obtaining intelligence.

After this lengthy process, the document is returned to the agency which produced it for a final review and formal declassification. At that point, the document essentially becomes a record that would be available to the press and to the public via a Freedom of Information application, or it might be publicly released by the person or agency that requested the declassification.

Trump’s big problem is that he wanted secrets, not public information, because secrets have value that publicly available information does not. What good is a classified document if everyone knows what it says? If Trump had in fact declassified the documents in question, there would have been no argument about them in court before either Judge Cannon or the Circuit Court, and certainly there would be no reason for Judge Dearie to question Trump and his lawyers as to whether they had been declassified.

It's a box Trump himself constructed and locked himself into through a combination of arrogance and ignorance. Trump kept the documents because he believed “they are mine,” as he has said several times, an act and allegation of totalitarian levels of self-regard. But he had no knowledge of what is involved in declassifying information because he had never formally done so. He knew all about revealing secrets, as he did when he revealed secret information about Israel to the Russian ambassador and foreign minister only days into his presidency, and which he probably did in his private meeting with Vladimir Putin at Helsinki, which he held without any aides or even his own translator, agreeing to use Putin’s instead.

He could have let the DOJ have the classified documents the FBI took from Mar a Lago and been done with it. Instead, he went into court and asked for a special master to review the documents, and now here he is, having to respond to the demands of the very person he got a federal judge to appoint for the purpose of going through Trump’s professional underwear drawer, as it were.

Welcome to your big day, former President Trump, and good luck. You’re going to need it.

Lucian K. Truscott IV, a graduate of West Point, has had a 50-year career as a journalist, novelist, and screenwriter. He has covered Watergate, the Stonewall riots, and wars in Lebanon, Iraq, and Afghanistan. He is also the author of five bestselling novels. You can subscribe to his daily columns at luciantruscott.substack.com and follow him on Twitter @LucianKTruscott and on Facebook at Lucian K. Truscott IV.

Reprinted with permission from Lucian Truscott Newsletter

National Archives: Trump Took 'Classified National Security' Documents From White House

The National Archives delivered more damning revelations in a letter Friday, finding that Trump White House aides were conducting official government business via non-approved non-government electronic messaging apps. NARA also confirmed that there were “items marked as classified national security information” in the 15 boxes being stored in the former president’s Mar-a-Lago suite, in violation of federal law.

“NARA has also learned that some White House staff conducted official business using non-official electronic messaging accounts that were not copied or forwarded into their official electronic messaging accounts, as required by section 2209 of the PRA,” the letter said, referring to the Presidential Records Act.

Trump won office in 2016 in part by distorting and politicizing Hillary Clinton’s use of a private email address and server, which were not violations of law.

The National Archives letter makes clear classified documents were in fact in those 15 cartons, and that it has contacted the DOJ: “Because NARA identified classified information in the boxes, NARA staff has been in communication with the Department of Justice.”

It also reveals that as far back as 2018 it knew Trump was destroying documents and asked the White House Counsel to intervene. Although they said they would, the document destruction, reportedly including by flushing documents down the toilet, had continued.

Investigating Trump's White House Document Scandal, Without Fear Or Favor

The world-historical carnage inflicted by the singularly misreported story of the 2016 presidential election has been forever captured in a pithy, ironic cliche: "But her emails..."

While every politically aware American understands that baneful phrase, it gained a far deeper significance this week with revelations of how former President Donald J. Trump "mishandled" — in fact stole, flushed, ripped up and perhaps even ate — White House documents he didn't want archivists, historians, or criminal investigators to obtain. That includes some unknown but undoubtedly large volume of classified material, from "Confidential" to "Top Secret," including information pertinent to the investigation of his attempted coup and insurrection.

Trump's outraged bellowing about Hillary Clinton's alleged mishandling of her emails and other State Department documents was of course utter fakery. Subsequently, not only Trump but nearly everyone around him — notably Jared Kushner and Ivanka Trump, Steve Bannon and many others — regularly used unsecured private communication devices to discuss government business. "Lock her up!" was nothing but the usual Trumpian cynicism and should have been a predictive sign that he was projecting his own real and rampant misconduct.

The stunning truth about Trump's unlawful and bizarre treatment of presidential documents is just beginning to emerge in full, yet certain mainstream media outlets appear determined to minimize his potential criminal exposure. No less an authority than the New York Times informed its readers last week that "if Mr. Trump was found to have taken materials with him that were still classified at the time he left the White House, prosecuting him would be extremely difficult and it would pit the Justice Department against Mr. Trump at a time when Attorney General Merrick B. Garland is trying to depoliticize the department."

That statement appeared in a news article, although it clearly expressed the unsupported opinion of Times journalists, hiding behind a characterization of Garland's current state of mind regarding Trump — in short, punditry and soothsaying. And that report stands in stark contrast to the weight the Times put in the balance in 2016 — influencing the reporting of every major American news outlet — by obsessively insisting that Hillary Clinton was vulnerable to criminal prosecution. From that coverage, which pervaded American political media, innocent voters could only surmise that she had probably committed felonies and that her alleged misdeeds were the most important fact of the election.

So obsessive, in fact, was the paper's coverage that "in just six days, the New York Times ran as many cover stories about Hillary Clinton's emails as they did about all policy issues combined in the 69 days leading up to the election," according to analysis published by the Columbia Journalism Review. One editorial, published on May 26, 2016, after the State Department inspector general exonerated her, was headlined "Hillary Clinton, Drowning in Email," noting that "the email controversy" amplified by the Times was "likely to make her seem less personable to many voters."

Washington journalists may attempt to justify that distorted focus, much as they once sought to justify the Whitewater non-scandal two decades earlier, but it's still a disgrace. The judicious James Fallows, writing in The Atlantic, described the Times' coverage of Hillary's emails as "imbalanced and credulous" and "a legitimizing and enabling factor" in Trump's election.

The FBI and the Justice Department ultimately found no crimes committed by Secretary Clinton, despite FBI director James Comey's glaring and sanctimonious violations of Justice Department policy in bandying about claims of potential criminality, before pronouncing her innocent.

At this moment, we know no such thing about Trump or his gang — who appear to have both enabled and warned him many times about his violations of the Presidential Records Act as well as various classification statutes. We don't know what was in the dozen or more boxes with which he absconded from the White House, except that he appears to have taken classified material and that somehow the records of his telephone communications during the January 6 insurrection appear to have been deleted.

The National Archives and Records Administration has asked the Justice Department to investigate these matters. We must hope that Attorney General Merrick Garland will do his duty in enforcing the rule of law and pursue the facts wherever they may lead. No longer president, Trump is subject to criminal prosecution if he broke the law as president — and there is plenty of reason to believe he did so. Given his unbroken record of lies, subterfuges and brazen obstruction of justice — 10 instances of obstruction memorialized by Robert Mueller in his report on Russian influence on the 2016 election alone.

So, reporters and analysts should take a very long step back before offering any assumptions or predictions that Trump cannot be prosecuted or implying he did not commit crimes. The same people telling us that he can't be prosecuted once led us to expect that Hillary Clinton would be locked up.

Let the investigation proceed, and let justice be done.

To find out more about Joe Conason and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at www.creators.com.