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Culture War Roundup for the week of January 9, 2023

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What do you do when caught with top secret documents? Deflect:

[He] didn’t know the documents were there, and didn’t become aware they were there, until his personal lawyers informed the White House counsel’s office, one source familiar with the matter told CNN.

Of course, this time it’s Joe Biden, not Donald Trump. The President’s staff has handed over several documents, including TS//SCI, leftover from his time as VP. His personal attorneys found the documents on November 2nd while clearing out a closet in his former Penn Biden center office, immediately notified NARA, and handed off the hot potato the next day. Since then the DoJ has appointed an attorney to figure out who’s responsible for the illegally handled files. Other than that, most everyone involved has refused to comment unless they represent one of the parties in court.

Now for the obvious comparisons:

  • The type of documents seem similar to those kept in Mar-A-Lago, and were haphazardly filed in a similar manner

  • NARA didn’t know about (or request) the missing files

  • If Biden’s team is concealing more documents, they’re doing a much better job

  • The FBI is watching but not serving any warrants

  • Perhaps most importantly, the President is deflecting and denying rather than crying “witch hunt”

This leads, naturally, to two movies on one screen. Either the President is taking all the right actions after some staffer’s fuckup, or the security state is shamelessly giving him a slap on the wrist. What few outlets are writing on the subject fall into these two narratives. Democrats can’t help but compare the “scope and scale” of the violations, while Republicans emphasize the lack of door-kicking.

Neither stance addresses the real deciding factor of a smoking gun. This is going to be a Hillary situation. Like her infamous server, responsibility is diluted enough that no charges will be brought. (Note that I’ve made the same prediction about Mar-A-Lago.) Both narratives will try to spin epistemic uncertainty into iron-clad assurance, thus adding no value.

The only real conclusion is that you or I wouldn’t get off nearly so easily. If you’re going to store classified documents for your job, you’d better talk softly and hire a big staff.

Let me see if I understand correctly.

In Biden's case the staffers who discovered the documents immediately alerted NARA to their existence, turned the documents over, and are cooperating with the governments investigation into how the documents came to be there.

In Trump's case NARA learned Trump had documents bearing classification markings after some were included in boxes of presidential records Trump returned to NARA. NARA told Trump they were going to inform the FBI of the classified docs. Trump asks NARA not to tell the FBI, but produces no further documents. Eventually NARA informs the FBI. The FBI gets a subpoena for all documents at Mar-a-Lago bearing a certain set of classification markings. Trump turns over some documents and (falsely) certifies that those documents are all the ones in his possession that are covered by the subpoena. The FBI, by means not fully public yet, develop probable cause to believe Trump has further documents covered by the subpoena which he has not produced. A magistrate judge issues a warrant and the FBI execute that warrant. In the course of executing the warrant the FBI discover their probable cause was correct and Trump had lied about compliance with the subpoena.

Now, maybe some very damning facts will come out in the Biden case. It is a developing situation after all. But on the basis of the facts I know so far the differential response by law enforcement and related entities seem totally explicable.

Now, maybe some very damning facts will come out in the Biden case. It is a developing situation after all. But on the basis of the facts I know so far the differential response by law enforcement and related entities seem totally explicable.

The 'damning' fact comes down to declassification authority. The legal architecture of the American classification system is such that bar maybe a few categories of information (nuclear, iirc), the President is the ultimate classification and declassification authority. The legal argument in favor of Trump was that, as it was his decision / auspice to move the documents while President, it wouldn't be a criminal action for the President to do things in the purview of the President.

The NARA / FBI saga relied on the Biden Administration's legal position of 'nuh uh' and for the FBI to conduct a highly publicized raid in the context of then-ongoing Jan 6 hearings by the Democratic Party, as opposed to less obtrusive means.

The issue here is that these Biden documents, coming as they did from a time when Biden was NOT the declassification authority, lack even the 'I was the President at the time' defense. And, with multiple locations now identified, this is indicative of a pattern... but not a pattern being treated with the same urgency, publicity, or even legal rationals for why the Public Should Care.

To which most people will shrug, and go 'why should I care if -context of choice-,' and proceed to not care. Which is the point- the caring is not based on the legality of the situation (post-fact cooperation does not mitigate pre-discovery recklessness), it was based on people wanting a reason to go after someone they wanted to go after, while finding reasons not to go after people they don't want to go after.

Which is what was expected, and assessed/predicted during the Mar-a-Lago incident, when people were claiming it was a Very Serious Thing, as opposed to the cynical take that it was a Very Opportunist Thing.

How is Trump's declassification authority relevant for his lying about compliance with a subpoena?

The would be the 'insert context of choice' demonstrating that it's not about the underlying issue, but rather the search of a stick. Note how the stick is now 'compliance with a subpoena' and not the relevance of the classified documents that drove the subpoena.

Trump's declassification authority is relevant to the discussion because the injustice of violating process relies relies on the perception of the legitimacy of the process being applied. 'Resisting arrest' takes completely different tones and perceptions if the nature of the arrest is perceived as legitimate or arbitrary. Likewise, the relevance of complying with subpoenas relies on the legitimacy of the subpoenas. If the argument of Trump's classification authority (that he could not commit illegal storage of the classified materials because the President is who decides what is and is not classified, and Presidents have an acknowledged history of deciding what documents to take with them) is taken as legitimate, then the NARA demands for documentation, and FBI decision to raid to enforce, are illegitimate as a consequence because the NARA doesn't have a right to documents.

Trump's declassification authority is also relevant in that it is, by and large, unique to the President, and does not apply to the Secretary of State (Clinton), or Vice President (Biden). Turning the argument into 'compliance with the subpoena' just underscores the nature of the subject as a process crime, and not, say, the claimed-at-the-time justification of the importance of national security information whose improper storage could cause severe damage to the national security of the United States and thus justify subpoenas and a publicized FBI raid to recover.

If the argument of Trump's classification authority (that he could not commit illegal storage of the classified materials because the President is who decides what is and is not classified, and Presidents have an acknowledged history of deciding what documents to take with them) is taken as legitimate, then the NARA demands for documentation, and FBI decision to raid to enforce, are illegitimate as a consequence because the NARA doesn't have a right to documents.

This is not correct. Subpoenas are issued all the time by the government for documents which the individual being subpoenaed has a lawful right to possess. I suspect most of the time when the federal government is subpoenaing something from someone, the individual in question has a lawful right to possess it.

In any case, if Trump thought the subpoena was issued unlawfully, or was unlawfully overbroad, the correct thing to do is to go to a federal court and ask them to either quash or narrow the subpoena, not to lie about complying with it. This is something Trump has done with other subpoenas (such as ones issued by the House when he was President) so why isn't that what he did here? If he thought the subpoena was unlawfully issued because he had declassified the documents in question, why did he turn over any docs, rather than go to a federal court and seek to have the subpoena quashed on those grounds? It seems to me a much more parsimonious explanation is that Trump knew the documents were not his property (as confirmed by the 11th Circuit) and that he was required to turn them over and he thought he could deceive the federal government into believing he had done so, without actually doing so.

And this is, again, demonstrating that the issue is not, in fact, the possession of classified documents, despite it being the claimed and presented reason for why it was a Significant and Serious Offense at the time.

'Trump played lawfare badly' is certainly a useful stick given his skills, but it remain a different stick.

I rather think both sticks are applicable.

Trump plainly lied about compliance with a lawfully issued subpoena and also mishandled classified documents. The declassification argument is an entirely post-hoc defense that was only raised after Trump's defiance of a subpoena became public knowledge. Trump has repeatedly had the opportunity to raise the declassification defense in court, including in the special master proceedings that he requested, and has consistently declined to assert that any particular document was actually declassified. The most Trump, via his lawyers, has been willing to assert is that he could have declassified them while President (which no one disputes) and this fact obliges the Department of Justice to treat the documents as if he had actually declassified them (false).