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Trump Lawyer Told Justice Dept. That Classified Material Had Been Returned

By Curt_Anderson
August 13, 2022 10:27 am
Category: Law

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(New York Times)A lawyer for former President Trump signed a statement in June that all files in Mar-a-Lago had been given back. The F.B.I.’s search on Monday turned up more.

The signed declaration is a possible indication that Mr. Trump or his team were not fully forthcoming with investigators about the material.




Trump's legal team has a conundrum: They can't say they knowingly and falsely declared that all the files were returned. They can't say they mistakenly thought that all the files were returned because that indicates the classified and top secret documents were unsecured and not kept in a single secure location, aka SCIF. The choice is admitting to obstruction or mishandling classified information.

However, this may not be a problem for Trump and his legal team. They are not adverse to making illogical and contradictory arguments in Trump's defense. already they've claimed that the FBI "planted" the classified documents at Mar-a-Lago AND Trump had previously declassified those documents.

Cited and related links:

  1. nytimes.com

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Comments on "Trump Lawyer Told Justice Dept. That Classified Material Had Been Returned":

  1. by Curt_Anderson on August 13, 2022 10:57 am
    Another contradictory and self-incriminating Trump defense is that Trump didn't do anything wrong AND Obama did it too so go after him.

    National Archives Rebuts Baseless Donald Trump Statements About Barack Obama and Classified Documents
    Days after the FBI’s search of his Mar-a-Lago home for classified documents, at least some of which reportedly relate to nuclear weapons, former President Donald Trump attempted to shift attention to former President Barack Obama. Trump’s Truth Social posts insinuated that he is being politically targeted and uniquely persecuted unlike his predecessor, but the National Archives rebutted that on Friday in a statement.
    lawandcrime.com


  2. by Donna on August 13, 2022 11:11 am
    Deflection, making up shit, weve seen this before.

    During Nixon's demise, his approval rating even among supporters plummeted during his final months. That isn't going to happen with Trump. The difference is that Nixon's supporters didn't have a cultish devotion to him; there was no cult of personality.



  3. by Curt_Anderson on August 13, 2022 11:51 am
    Donna,
    That's all true about Nixon compared to Trump. But the less zealous cult members must be exhausted defending Trump. I am sure it occurs to some of them that Trump lies and contradicts himself constantly. He said only mobsters and guilty people take the Fifth and Trump took the Fifth 440 times this week. Hillary's mishandling of classified documents was worthy of "Lock her up!" but his mishandling of top secret and very top secret documents is no big deal. And that's just this week.

    Last week we learned that Trump wanted his generals to be more Hitler's. Some of the cultists must have thought, wait, wasn't Hitler a bad guy? Nobody has contradicted that report, btw.

    Not all of them can live a state of perpetual cognitive dissonance.


  4. by islander on August 13, 2022 1:07 pm

    Regarding Hillary's mishandling of classified material.

    What we'll see Trump’s defenders try to do, among other things, is appeal to their old standby ‘what-about-ism’ and try to equate Hillary's mishandling of classified material on her email server as if it were on par with what Trump has done. It’s called a ‘false equivalency’ and I'm beginning to think it’s all but impossible to explain the difference to them.

    Hillary was most certainly culpable of mishandling classified material. Trump however stole classified documents and kept them in his home until he got caught. Vastly different! But I have already heard the false double standard argument as part of Trump’s defense for this and I guarantee we’ll hear the old “What about Hillary” argument again!

    Trump is in deep doo-doo this time and I don't realistically see him getting out of it. This is definitely getting more and more interesting.


  5. by Curt_Anderson on August 13, 2022 2:08 pm
    "Trump is in deep doo-doo this time and I don't realistically see him getting out of it. This is definitely getting more and more interesting." --islander

    Agreed. Trump will be undone by his well known personality flaws: hubris, narcissism, entitlement mentality, erraticness and a disregard for norms.


  6. by HatetheSwamp on August 13, 2022 2:32 pm

    If Trump declassified all of the classified material, this is, simply, brouhaha.


  7. by islander on August 13, 2022 2:47 pm

    I'll bet Trump wishes he could unilaterally declassify documents. He's in way over his head now. He'll try all his con-man tricks but we've seen them all before and they're getting a little old Lol !!


    "Classified documents are labeled as such, so that if someone should come upon it, they know how to handle it. Every page is marked classified, and in docs with multiple levels of classification within it, they might have classification marks for every paragraph.

    Classifications can be changed, of course. And how do you know the classification has been changed? The old classification marks are struck through, and new ones placed on the document.

    If the docs have “SECRET” printed at the top, then they are Secret. Trump can claim he declassified them, but that just invites the followup question “How does anyone know?”

    Suppose an old Reagan White House staffer has a document in their home from their days in the White House that is marked “SECRET” and somehow word of that document got to the DOJ who came looking for it. “Oh, that document,” says the staffer. “Reagan declassified that before he left office.” The DOJ person looks at it again, and says “But it’s still marked SECRET.” They write a note in the notebook, and ask the obvious followup: “OK. Do you have anything to back that account up?” The staffer replies “No. He just pointed to it and said ‘I declassify you’ three times, and then handed it to me.” The DOJ person asks “Was anyone else in the room?” The staffer, seeing where this is going, is starting to get nervous. “If you mean anyone else who is still alive and can vouch for me, no.”

    That’s why the document markings matter. They protect the information in the document and those who put it together (the sources and methods), and they protect the people who handle the document from accusations of mishandling classified material.

    If you changed the classification and didn’t document it in some way, how the hell is anyone supposed to know?" *

    * from Teri Kanefield's site


  8. by islander on August 13, 2022 4:18 pm
    ** I mistakenly attributed my last quote to Teri Kanefield's site. It should have been Marcy Wheeler's site which is another excellent site for good information.


  9. by oldedude on August 13, 2022 6:48 pm
    I searched and couldn't find an exception from a reliable source for classified documents containing nuclear secrets. Honestly, I'm not going to put out my opinion of this because I never really cared what the President could or couldn't do. I was more concerned with correctly marking my own reports. I cannot source DoD, DoE, or State Dept (ODNI) regulations as they are classified. I did go to global security, a well-respected open source and classified reference in the FVEY community and got the answer below.

    One other point. I found there was a vast difference in answers depending on the publication. If they were left leaning, he does not have the authority. If they are right leaning, then yes.

    I'm not saying it's right or a good idea to unilaterally declassify. I am just reporting what Global Security says. I personally would not use it much at all. From the GS13 perspective, I never asked for another agency to declassify anything (at my level that's what you have to do, which is a PITA for sure). I did run across RE classified material every now and then. Maybe the agency decided to declassify or increase the classification. When this happens, every page has to have the original classification, date reclassified, Year when that classification must be reviewed.

    I do think Trump is over his head on this. People like Mike Flynn have been dealing with classified all their lives. For Trump, it's a new thing. No excuse, just a thought.

    "Experts agreed that the president, as commander-in-chief, is ultimately responsible for classification and declassification. When someone lower in the chain of command handles classification and declassification duties -- which is usually how it's done -- it's because they have been delegated to do so by the president directly, or by an appointee chosen by the president.

    The majority ruling in the 1988 Supreme Court case Department of Navy vs. Egan -- which addressed the legal recourse of a Navy employee who had been denied a security clearance -- addresses this line of authority.

    "The President, after all, is the 'Commander in Chief of the Army and Navy of the United States'" according to Article II of the Constitution, the court's majority wrote. "His authority to classify and control access to information bearing on national security ... flows primarily from this constitutional investment of power in the President and exists quite apart from any explicit congressional grant.""

    globalsecurity.org


  10. by Curt_Anderson on August 13, 2022 7:39 pm
    The Global Security article you cited seems to be an earlier version of or perhaps barrow from this article in Politifact.

    Politifact makes some important points:
    1. Sitting presidents do have wide powers to declassify documents, but they are supposed to go through a detailed procedure to do so.
    2. Former presidents cannot declassify.

    Of course, a lawyer for Trump signed a statement in June that said all classified material at Mar-a-Lago was returned. So obviously SOME documents were not declassified. It seems unlikely that Trump would declassify some but not all. I am guessing that he didn't declassify any, at least not using any accepted and recorded procedures.




    politifact.com


  11. by islander on August 14, 2022 4:19 am

    From the same link:"

    "Merely proclaiming a document or group of documents declassified and doing nothing more would not suffice," Bradley Moss, a Washington, D.C.-based lawyer who works on national security cases, told PolitiFact.

    Follow-through is required.

    "He had to identify the specific documents he was declassifying, he needed to memorialize the order in writing for bureaucratic and historical purposes, and he needed to have staff physically modify the classification markings on the documents themselves," Moss said. "Until that was done, the documents, per the security classification procedures, still have to be handled, transmitted and stored as if they were classified."

    Tom Blanton, director of the National Security Archive at George Washington University, agreed."


    It appears that Trump, naturally, has no power to declassify documents once he leaves office. If there are no records of him declassifying 'any' of the classified documents that he took "before he left office" then he is in the deepest of trouble. He could not simply declare them "declassified" take them with him and go through the declassification procedure at home.


  12. by oldedude on August 14, 2022 7:40 am
    Curt-
    There are two issues here.
    1. Can he LEGALLY declassify documents.
    Apparently, there are several answers to this, and it's going to be an argument in the court systems. I'm not going to argue either side of this one.

    2. I am going to "assume" he can. So how can that be done?
    Declassification is not rocket science, although it's manhour intensive. Generally, the original source has the duty to declassify their own documents. Items can be classified for HUMINT, COMINT, SATINT, TTP or other reasons.

    a. Each paragraph is classified according to the above criteria. What the paragraph is classified and who is authorized to see it. i.e. (TS/NATO/FVEY)

    b. At the top of the page, is the classification of the document, date/time stamp of original document, and date to be renewed.

    c. Some documents have a quick life expectancy. Say a head of state is to visit the US. The itinerary is classified TS (NOFORN) until they cancel, there is a press release, or they are gone. This is where cliton got in to trouble with the British government. News of a visit was in the papers before they got here. This puts the visitor in extreme danger (and would really be bad for the relations with that country).

    d. Declassification could be as easy as taking out one paragraph, assuming the paragraphs surround the higher classified information isn't mentioned in those paragraphs. This is a simple redacted document.

    e. IF the totality of the information is what is classified. That presents a much larger problem to declassify. Many times there will be levels of this information. The document that is TS/(and who is allowed to see it). There would be others that are more general in nature perhaps classified as SECRET, and watered down versions that are given to Company sized commanders, as CONFIDENTIAL/FOUO. This allows unit commanders to train their troops about the mission without divulging the TS or SECRET information.

    Sorry for the long dissertation. The theory is the President should follow these guidelines for declassification. It shouldn't be for "the public needs to see this." The guidance is for the protection of assets and those that serve us. I honestly don't know IF or how anything was "declassified" and it's a crapshoot on how it was done (due to conflicting information).


  13. by Curt_Anderson on August 14, 2022 10:19 am
    "There are two issues here.
    1. Can he LEGALLY declassify documents.
    Apparently, there are several answers to this, and it's going to be an argument in the court systems. I'm not going to argue either side of this one." --HtS

    The FBI and DOJ only care about legalities related to classified documents.

    In 2016 candidate Trump had an absolute view about the improper handling on classified documents.



  14. by oldedude on August 14, 2022 10:21 am
    And if they are declassified incorrectly, which may actually NOT make them declassified, that is a legal issue. and one that is pretty stiff.


  15. by Curt_Anderson on August 14, 2022 7:54 pm
    If the documents really were declassified they would be considered subject to a Freedom of Information Act public record requests. In that case, Trump and his apologists should just submit a FOIA request to get all the documents (or at least copies) back to Mar-a-Lago.


  16. by oldedude on August 14, 2022 8:41 pm
    You "assume" people know the documents have been declassified. That's a pretty big "assumption" in a private library.


  17. by Curt_Anderson on August 14, 2022 8:46 pm
    It's not my assumption. Trump and his lawyers said they were declassified.


  18. by oldedude on August 14, 2022 9:27 pm
    Yet again, not my point. If people don't know if they are declassified, they won't be asking for them. They generally don't put the declassification in all the newspapers. Yes they would be open to FOIA, but if no one know they are declass, it's a moot point.


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