This weekly roundup thread is intended for all culture war posts. 'Culture war' is vaguely defined, but it basically means controversial issues that fall along set tribal lines. Arguments over culture war issues generate a lot of heat and little light, and few deeply entrenched people ever change their minds. This thread is for voicing opinions and analyzing the state of the discussion while trying to optimize for light over heat.
Optimistically, we think that engaging with people you disagree with is worth your time, and so is being nice! Pessimistically, there are many dynamics that can lead discussions on Culture War topics to become unproductive. There's a human tendency to divide along tribal lines, praising your ingroup and vilifying your outgroup - and if you think you find it easy to criticize your ingroup, then it may be that your outgroup is not who you think it is. Extremists with opposing positions can feed off each other, highlighting each other's worst points to justify their own angry rhetoric, which becomes in turn a new example of bad behavior for the other side to highlight.
We would like to avoid these negative dynamics. Accordingly, we ask that you do not use this thread for waging the Culture War. Examples of waging the Culture War:
-
Shaming.
-
Attempting to 'build consensus' or enforce ideological conformity.
-
Making sweeping generalizations to vilify a group you dislike.
-
Recruiting for a cause.
-
Posting links that could be summarized as 'Boo outgroup!' Basically, if your content is 'Can you believe what Those People did this week?' then you should either refrain from posting, or do some very patient work to contextualize and/or steel-man the relevant viewpoint.
In general, you should argue to understand, not to win. This thread is not territory to be claimed by one group or another; indeed, the aim is to have many different viewpoints represented here. Thus, we also ask that you follow some guidelines:
-
Speak plainly. Avoid sarcasm and mockery. When disagreeing with someone, state your objections explicitly.
-
Be as precise and charitable as you can. Don't paraphrase unflatteringly.
-
Don't imply that someone said something they did not say, even if you think it follows from what they said.
-
Write like everyone is reading and you want them to be included in the discussion.
On an ad hoc basis, the mods will try to compile a list of the best posts/comments from the previous week, posted in Quality Contribution threads and archived at /r/TheThread. You may nominate a comment for this list by clicking on 'report' at the bottom of the post and typing 'Actually a quality contribution' as the report reason.
Jump in the discussion.
No email address required.
Notes -
Part of the problem with this is legal case is that with a few (largely nuclear-related) exceptions, all classification guidance exists in the form of Executive Orders. The current guidance is EO 13526 from 2010, but that revoked and replaced a whole list of orders from previous administrations dating back to Harry Truman. So if the question is "could Trump have declassified this?", he could have declassified (almost) everything by mere a executive order revoking 13526 without replacement. In addition, the EO 13526 explicitly designates the President (and Vice President) as a "classification authority" able to determine classification.
But what constitutes an executive order? In general, the separate powers of the US federal government are given broad leeway to determine their own rules and procedures (see Noel Canning, which found that the Senate is in recess only when it declares itself as such). I can't see any reasonable court deciding that failing to write on official White House stationary invalidates an executive order. There might be an argument that the President wasn't faithfully executing the laws as passed by Congress, but the Legislature has its own means (impeachment) for enforcing that.
If the contention is that the illegal acts happened after he was president, that's a potential case, but I think it still faces a fairly high bar to show that keeping the documents wasn't justified by actions taken as president: that would require a court to take significant leeway in interpreting how the executive ran its operations. A precedent of "just because a President [claims to have] issued verbal instructions to do things that are lawful except for violating prior executive orders doesn't prevent your prosecution for violating those prior orders" would be terrible.
Does an elected President (in particular, one with no prior service) even have to sign SF 312? That NDA is the vehicle through which most criminal charges for mishandling classified information flow, and without it it's unclear that any charges could stick to a non-signatory. That's why the powers that be can't charge the journalists at The Washington Post who published the Snowden leaks.
Now, the fact that classification is almost entirely due to Executive fiat is, I would agree, a terrible arrangement, and it would make quite a bit of sense to codify (much of) the existing ruleset through an act of Congress. But, in its great wisdom, Congress hasn't decided that doing so is worth its effort. Ultimately, I'm not a fan of Trump, but this really seems like a politicized effort to bring historically unprecedented charges.
This presupposes that there is in fact a single method by which the President declassifies information.
As argued way back when, the theory of this case is that Trump (1) willfully decided to remove classified information in violation of the law but (2) Trump could have cured the violation by declassifying the documentation (3) yet by not using a specific incantation he failed to declassify.
I think the appropriate response is that since in fact there is no special incantation the President must follow when it comes to declassifying documents AND people don’t purposefully break crimes when they have the unilateral power to make it not a crime, Trump’s action of taking the documents de facto made them not classified.
The fact that Trump later allegedly referred to the documents as classified doesn’t contradict the above; he could be saying it colloquially that the information is sensitive and he didn’t want to share it with a reporter.
Seems special pleading: why are we requiring no special incantation when declassifying, but are requiring a special incantation ("these are classified" is not enough!) when classifying?
That said, has Trump spoken any incantation for declassifying?
Because classifying documents make it a crime for how other people handle them so there needs to be a process as a matter of due process for people who don’t have the unilateral ability to declassify.
Stated differently, the president can reveal classified info to Allies or even enemies on a phone call (as this may be necessary to achieve a certain strategic goal). That means the President effectively declassified the material without any special incantation.
I’m suggesting a similar argument here. Or stated differently, the president as regards to classification per se cannot mishandle classification. He of course can be liable for what he does with the documents (eg sell the documents to a third party for money which is a bribe). But since the sole source of classification and de classification is the president the president cannot willing break classification laws.
More options
Context Copy link
does he have to? He is not bound by his executive orders and I am not sure on this issue he can be bound by congress.
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link