Mar-a-Lago: Classification kerfuffle and Trump’s RICO suit

Knowing much that isn’t so, and other adventures.

There is a whole lot else to say, so my apologies up front for not saying it.  I just want to keep this short (well, shorter than it would otherwise be).  Consider this an open invitation to say whatever seems to live loud within you and demand saying.

Ideally, the comments on classification of documents, presidential authority, and Trump’s holding of documents out of office would be even shorter than they’re going to be.

The bottom line on everything is that Trump was the president until 20 January 2021, and in most cases the president isn’t subject to the same agency regulations and procedures everyone else is.

That doesn’t make a clean single-color area for the president to operate in, however.  Rather, it generates a gray area largely governed by negation. It’s not actually simple – except from the standpoint that trying to find an enforceable provision of statute law that constrains the president to do things only in a certain way is a lot harder than just agreeing that his authority covers pretty much whatever he wants to do, with few exceptions.

Kerfuffle

The main restraints on the president are statutes that prescribe in advance the classification level of certain national security information, such as categories of information about U.S. nuclear weapons and some U.S. national technical means or human-intelligence means for intelligence collection.  Those prescribed classification levels, to the extent they are codified by statute, were voted on by Congress and signed into law by a president.  Even the sitting president can’t just deem qualifying information to be unclassified or less classified than prescribed in those statutes.  (He can choose to share it when it normally wouldn’t be – that’s a policy decision that statute law can’t eliminate his discretion over – but sharing it doesn’t declassify it.)

Virtually all of the information that that point applies to is enduringly significant information about the nature and capabilities – not the product – of the U.S. national security apparatus.

The product of intelligence collection is not handled by statutory prescription in the same way.  That product is what most of the public has passing familiarity with.  The product is time- and event-specific, and not only constitutes virtually all of what gets routinely declassified on age-out dates, but is routinely “sanitized” by authorities lower than the president to be used in less-classified or unclassified settings.  Similar though not identical points apply to classified information about U.S. operations, for which the most publicly familiar model is military operations.

As regards these types of classified information, the agencies writing the guidance for classification procedures and handling all work for the president.  Their baseline reference documents are a combination of presidential executive orders and departmental guidance documents (e.g., those maintained by the Departments of Defense and Energy, and the Office of the Director of National Intelligence).

We’ve had an eruption of Sudden Classification Experts in the last four days, to go along with the laughably political drumbeat from Democrats and the media about “Trump ‘stealing’ Top Secret documents!” and “Nuclear secrets at Mar-a-Lago!” (which somehow quickly transitioned, in the space of a paragraph or so, to “Trump giving nuclear secrets to the Saudis!”).

I hope it goes without saying that the conclusions being leaped to by hostile media and anti-Trump politicians are utterly inane.  In very short order, the proponents are going to want us all to forget they ever said what they’ve been saying in the last few days.

No one actually knows the things they’re all so sure of.  That’s because there isn’t a written guidebook for what the president can and can’t do, in terms of declassifying operational or intelligence-product information, or in terms of keeping what are probably mostly copies of presidential documents at an ex-president’s government-authorized and -funded post-presidential office.

That’s prelude to the meat of this point, which brings in the guidance John Solomon referred to on Friday 12 August as meaning that the president can declassify whatever he wants, when and however he wants.

There’s an extent to which that’s true, but it has its limits.  It doesn’t apply to types of information whose classification is prescribed by statute.  It does apply to the operational and intelligence-product information that eventuates day to day in the life of the U.S. government, over all of whose executive-agency operations the president has the ultimate executive authority.

Hold that thought in your head now, as I spot you the references John Solomon spoke of.  One is Obama’s E.O. 13526 of December 2009.

The other is George W. Bush’s amendment to a Clinton E.O., 12958 of 1995, which Bush published in March 2003.

The content of the Bush and Obama documents is mostly the same.  Inspect them at your leisure.  These are the E.O.s from which Solomon got this paragraph in his 12 August article:

 “Information originated by the incumbent President or the incumbent Vice President; the incumbent President’s White House Staff or the incumbent Vice President’s Staff; committees, commissions, or boards appointed by the incumbent President; or other entities within the Executive Office of the President that solely advise and assist the incumbent President is exempted from the provisions of paragraph (a) of this section,” the Obama order stated.

According to Solomon, this provision is the basis for the practiced alluded to in his article, by which Trump had a standing order as president that anything he took to the residence to work on became declassified.

Solomon includes this update from a Trump source on Friday:

“He had a standing order that documents removed from the Oval Office and taken into the residence were deemed to be declassified,” the statement added. “The power to classify and declassify documents rests solely with the President of the United States. The idea that some paper-pushing bureaucrat, with classification authority delegated BY THE PRESIDENT, needs to approve of declassification is absurd.”

That framing of the issue isn’t egregiously out of bounds.  Finding anything in law that makes the president conform his work habits to a paper-pushing bureaucrat’s approval schedule is no slam-dunk.

What it is, however, is non-customary, and off-center in terms of what’s being accomplished.  If POTUS’s goal is to work with classified material outside the West Wing, that’s what he has aides for.  Uniformed flag and general officers, who can’t get away with what the president (or, let’s be honest, the secretary of defense of the secretary of state) can get away with, typically make it their aides’ problem to tote around the classified material they need to work with away from their offices.

The president might do the same; e.g., have an aide retrieve whatever classified material he’s been working on when he’s done for the night, and make sure it magically appears when next the commander-in-chief needs it.

That said, I’m not going to second-guess the Trump administration’s practices.  Unlike Secretary Clinton, Trump’s White House managed to avoid spraying Top Secret documents through email servers around the world, and Trump has continued to manage that in the 18 months since he left office.

The sticking point is going to be what kind of classified documents are at issue in the Mar-a-Lago raid, and how other elements of government would know they’ve been declassified.

The wording in the two executive orders would have a fairly simple first-order reading.  Information originated by Executive Office of the President (and Vice President) entities is exempt from the handling requirements for declassification – those requirements typically written by subordinate agencies to deal with the agencies’ classified work product.

That reading doesn’t include, say, intelligence product reports from NSA or CIA that circulate in the EOP in some form.  However, the president is the ultimate classification authority for such products, whether for original classification or declassification.  Nothing in law says the president himself can’t declassify them, nor does anything affirmatively state that he – personally, himself – has to do so in accordance with the declassification procedures used by the relevant agency.  The latter concern depends largely on the purpose for declassification.

If the president wants the originating agency, other agencies, the other branches of government, or the public to know that the information has been declassified, that’s when he would do best to use the formal procedures that clarify exactly his intention.

Which is what Trump did at the end of his presidency with the declassification of Crossfire Hurricane material.  He had the material formally declassified in the guidance-prescribed manner, according to criteria of his choosing – which is his right as president – and communicated the result to DOJ.  That was because he wanted it to be published.

On the other hand, as far as we can tell – and it’s not very far, since we know practically nothing for certain – Trump doesn’t appear to have had the documents reportedly removed from Mar-a-Lago on 8 August formally declassified by bureaucratic paper-pushers.  (On the other hand, the documents from Mar-a-Lago may be the declassified files on Crossfire Hurricane. None of us knows one way or the other on that.  Kash Patel thinks they are.)

Such a procedure would include annotating the documents as declassified, striking through the original classification markings, and commemorating the act with reference to identifying document details (e.g., date and subject line) in a memo, email, etc.  A National Archives summary of procedures is here.  (It’s abbreviated but covers the basic.)

Whichever files they are, since the documents were just sitting there at Mar-a-Lago, it’s not clear how necessary the formalities would have been from a pragmatic point of view.  If harm was done to national security because an agency was not notified that its product had been declassified by the president, while the product’s content lurked peacefully, undisturbed, and made no mysterious appearance outside of secure venues, that would probably be a first in terms of harm-vectors.  We’d have to check.  The agency would have been treating the document(s) in question as classified anyway.

Of course – of course – such a situation is potentially problematic from the standpoint of general infosec (information security).  It’s no worse than what cabinet secretaries have been doing with email accounts and portable devices for the last 20 years, but it’s potentially problematic for the integrity of classification standards.  It’s worrisome practice.  At a given time, we may not be able to trust what a president is doing.

But what he’s doing isn’t inherently a criminal matter just because it’s questionable practice.  His political party may think what he’s doing is just dandy.  So might his voters.  The other political party may think it’s appalling.  Security mavens are likely to be taken aback and think it’s an a priori bad idea.

But presidential discretion doesn’t end where departmental regulations start – and the ultimate reason for that is that presidential actions are inherently disputable, first and foremost, as matters of policy, not of conformity with rules the president could rewrite overnight if he chose to.

Before wrapping this up, we should note that the statutes cited in the 5 August warrant aren’t about classification practice at all – nor are they about the president holding materials from his presidency after he’s left office.  That’s because there are no statutes that would support a probable-cause warrant premised on either consideration.

What Merrick Garland’s DOJ had to do to justify a warrant for boxes of documents was cite specific statutory misuses of classified information the former president might be engaged in.  There’s no evidence we’ve ever seen of any such engagement, but citing such statutes was the only way to justify going after the documents.

This is just one reason Garland is being skewered for the absurdly broad nature of the warrant.  It really is a case of “give me the crimes, I’ll find you the man.”  The warrant dangles statutes like carrots the horse can’t catch up to.  It’s written to justify seizing documents, not to aid the investigation of real, alleged crimes with a statutory premise.  It’s a fishing expedition.

But circle back once more to the bottom line stated at the top.  No one knows for sure all the things people have been stating with impressive certainty this week.  We don’t even know what was in the boxes.  Many jets need cooling.  Secure from Alert-5.

President Trump was, by his own account of the standing order for declassification, exercising discretion that as a general matter isn’t prohibited to him by law.  We have no idea if there are specific cases (e.g., the “nuclear information” allegation) where actual statutory constraints might be in play.  You don’t; I don’t; the Washington Post doesn’t.

The end result, if that point ever has a day in court, which it probably won’t, is likely to be that, sure enough, that’s what Trump was doing – exercising discretion – and the courts have no interest in legislating about it from the bench.  Congress might, I suppose.  I predict it will be the least of Congress’s worries, if we get to the day when all the shenanigans of the last 6-7 years come in for a thorough wirebrushing under a klieg light.

The RICO suit

The disposition of classified material isn’t really what this is all about anyway.

This section, we really will keep brief.  I want to address just three points.  One of them is pretty big, but has gotten little if any attention.  It’s at the end,

The first and easiest is that Magistrate Judge Bruce Reinhart – of Jeffrey Epstein defense fame – signed off on the Mar-a-Lago warrant for the U.S. District of Southern Florida a mere 44 days after recusing himself from the Trump RICO case against Hillary Clinton et al.

The list of recusals on the Trump RICO suit is impressive.  The first magistrate judge to be assigned recused the day after the case was filed in March 2022.  Reinhart himself was put on the case as magistrate judge in April because his predecessor recused.  Since Reinhart, three more magistrate judges have recused (here, here, and here).  The current magistrate judge, Patrick M. Hunt, has hung in there for about five weeks now.

But the RICO suit has a very interesting factor of its own to enliven this recusal history.  The day before Reinhart recused (that is, 21 June 2022), Trump’s counsel filed an amended complaint.  The original complaint was entered in March 2022; the amended complaint is a humdinger, more than doubling the number of facts asserted in evidence.

I haven’t had time to go through all the added facts (many of which, like the originals, come from John Durham’s court filings).  The amended complaint also added some defendants.  It was after this filing that the exit parade of magistrate judges began.

That brings us to the second point.  Also ensuing on the filing of the amended Trump complaint was a request from the U.S. Department of Justice (“United States”) to substitute itself as defendant for five of the original defendants:  Comey, McCabe, Strzok, (Lisa) Page, and Clinesmith.  The request was filed 14 July 2022.

Said U.S. Attorney Juan Antonio Gonzalez:  “Because plaintiff’s tort claims [against the five defendants] are based upon conduct within the scope of these former FBI employees’ employment with the government, the United States is the sole and exclusive defendant for those claims. … The Court should substitute the United States as defendant for James Comey, Andrew McCabe, Peter Strzok, Lisa Page, and Kevin Clinesmith.”

Then, inevitably:  “Upon substitution, the Court should dismiss the United States [as a defendant] for lack of subject matter jurisdiction.”

This was a big move by DOJ to get the Crossfire Hurricane/FISA-faking team out of the line of fire in Trump’s RICO suit.  Those who aren’t following the RICO suit closely probably haven’t even heard about it.  It’s interesting that DOJ asserts Kevin Clinesmith’s alleged behavior – falsifying claims for the FISA authorization on Carter Page – was conduct within the scope of his employment; but let that pass for the moment.

Here’s the really interesting thing, at point three.  The trial judge, Donald Middlebrooks, granted the motion to substitute on 21 July 2022.  He dismissed the FISA Five from the list of defendants and substituted the United States.  But he acknowledged Trump’s right to come back with counterargument on that, and he deferred ruling on the DOJ motion for outright dismissal, after the United States was substituted.

And that’s when DOJ, which had known about the material at Mar-a-Lago for months (since at least February 2022, if not before), and had sent the FBI to look through it on 3 June 2022, actually pounced.

On 4 August, Trump filed in opposition to the judge’s 21 July decision to substitute United States and dismiss the complaint against the FISA Five.  The opposition motion opened with this uncompromising Argument heading:  “DEFENDANTS ARE NOT ENTITLED TO WESTFALL CERTIFICATION AS THEY ACTED OUTSIDE OF THE SCOPE OF THEIR EMPLOYMENT IN MALICIOUSLY PROSECUTING PLAINTIFF.”

The same day, Trump filed opposing Hillary Clinton’s earlier motion to dismiss the RICO complaint (the Clinton motion having been made on the basis that Trump had failed to state a claim).  His counsel also answered in opposition to motions to dismiss from four other defendants.

The warrant for the Mar-a-Lago raid was requested and issued the next day, 5 August 2022.

The DOJ’s substitution move in July frankly shapes up as a tactic to put the United States into the RICO lawsuit as a defendant, where it wasn’t one before.  Then it’s followed by a fishing-expedition raid on Mar-a-Lago on a remarkably thin pretext, accompanied by a barrage of wild media speculation about nuclear secrets, espionage, Saudi Arabia, and my personal favorite (so far):  a theory that Trump’s possession of a file on Emmanuel Macron is connected to a scheme to give the Russians kompromat on the French president.

This is maneuver warfare going on, not the stately-paced pageant of law enforcement and jurisprudence.

It’s doubtful the purpose of leveraging the United States into the lawsuit was solely to get the suit dismissed.  If that doesn’t work, there are still things the United States can do that no other defendant can, to make Trump’s life as the plaintiff difficult.

If nothing else, the raid on Mar-a-Lago will probably succeed in getting material Trump may have hoped to bring in evidence to the RICO suit stamped all over with “pending federal case.”

If you think about it, DOJ already knew what Trump had on the DOJ/FBI RICO defendants sourced from classified federal records.  Trump had the information DOJ – and ODNI – already knew how to collect and assemble.  Perhaps he had more than was contained in the package of declassified materials he sent to DOJ in January 2021 for publication; perhaps he had only that.  If the Justice Department sought to verify such suspicions either way, it was during the FBI inspection at Mar-a-Lago in June 2022 that that was probably done.

But now, even if Trump had copies held separately and could still deploy the declassified materials to build a case for his RICO suit at trial, DOJ has its hooks in the information, and a damaging counter-narrative in the media already underway. (read more)