I Think Jen Dyer Agrees With Me, Too

That’s a good thing—for me. Despite having worked with classified documents for over 20 years, I’m not an expert on classification. No deep understanding of the conceptual framework underpinning the classification system is required to do the day to day work at the FBI field level. Dyer, who has that understanding, explains it in some detail—and you may wish to bookmark the article for future reference:

Two pings on the FBI raid on Mar-a-Lago: Classification kerfuffle and Trump’s RICO suit

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

Readers will recall that I advised against overthinking the classification issue, because it’s likely to prove to be a bit of a red herring. That it was important to understand that the POTUS is not just another government employee—like, for example, a Secretary of State. Because the president is the originating authority for all classification, the rules that apply to everyone who is subordinate to the CinC don’t apply to him—he gets to exercise discretion in ways that no one else can. There are some distinctions to be made from what I just wrote, and Dyer goes into them. Her bottom line for understanding the MAL Raid is much like the one I sketched out and which Andy McCarthy also dealt with. However, because of Dyer’s firm grasp of the classification issue her article is a must read.

Before we get to the bottom line, it’s important to understand that some classified information is classified by statute and thus binds the president. However, that type of information is almost exclusively “information about U.S. nuclear weapons and some U.S. national technical means or human-intelligence means for intelligence collection.” On the other hand, “intelligence-product information” is the product of collection. That product is not per se classified by statute and the president, as the originating authority for all classification, has wide discretion in handling such materials. Here is Dyer’s own explanation for the distinction:

Virtually all of the information that that point applies to [“means for intelligence collection”] 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.

What I’m going to say is this: It’s virtually 100% certain that any classified documents—if they were still classified—in Trump’s possession would have been “product”. Moreover, as Dyer explains, the fact that it is/was product by itself lends credence to the idea that the documents had, in fact, been declassified by the president.

Which brings us to Dyer’s starting point:

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.

Now, Dyer goes through some detailed discussion of security and classified document handling by Trump. She allows that many national security specialists would disagrees with those practices, but those are matters of policy, not of law. And certainly not of criminal law.

So, with that firmly in mind, here’s that bottom line—if you keep your eye on this, much else should fall into place:

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.

NBC News: The search warrant related to possible violations of:

18 USC 2071 — Concealment, removal or mutilation
18 USC 793 — Gathering, transmitting or losing defence information
18 USC 1519 — Destruction, alteration or falsification of records in Federal investigations

— Kyle Griffin (@kylegriffin1) August 12, 2022

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.

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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.

As I said, if you want to get a good handle on these matters, read Dyer’s entire article. But start with the general principle that the president, as an official, is unique in our constitutional system. He is not just another paper pushing federal employee, as Nancy Pelosi wants you to believe—about Trump, at any rate. The courts do understand this.

But that’s not the end of what Dyer has to say. Recall that I maintained that, one way or another, this whole operation is about “smear and delay.” In practice, the two go hand in hand. The PR smear aspect helps delay a final reckoning for what was behind the MAL Raid. And that’s the question—What was behind the MAL Raid? My preference, as stated, has been that the documents sought probably had to do with the Russia Hoax. After all, we know that declassification of Russia Hoax related documents was one of the last matters that Trump dealt with as POTUS. Early speculation had focused on J6, but I think the weight of opinion is coming around to the Russia Hoax. Some commentators are even calling this whole operation Russia Hoax 2.0. Then again, if Mueller’s operation was 2.0, maybe Garland/Wray is 3.0. Whatever.

Dyer makes a compelling argument that the MAL Raid was about Trump’s RICO suit against the perpetrators of the Russia Hoax. So, yes, it’s about the Russia Hoax, but if Dyer is correct then there may have been what could be called a triggering event. And Dyer makes a strong case for what that triggering event was.

The bare bones of Trump’s suit are easy enough to follow. He’s alleging that certain named former officials at the FBI, as well as private citizens at that time (prominently including Hillary), engaged in a conspiracy to maliciously prosecute him.

DoJ has attempted to get Trump’s suit dismissed, by claiming—I’m not kidding—that obtaining FISA warrants by fraud was somehow within the scope of employment for the defendants. DoJ wants the federal government to be substituted as the sole defendant, and then have the case dismissed for lack of jurisdiction. You don’t need to know the legal details for our purposes here.

My supposition, and Dyer’s, is that Trump was intending to use the trial or pre-trial proceedings as a vehicle for a release of the Russia Hoax documents to the public. Those would be among the documents at MAL, unless Trump has copies in some secure location, as he and his lawyers should. You can imagine the consternation that prospect is causing in regime circles! What to do? The answer seems obvious—by hook or by crook the regime must confiscate all those documents. Certainly—and Dyer recognizes this possibility—the suit might end up being dismissed, but the threat of those documents would remain.

Now you should be in a position to judge the strength of Dyer’s timeline based (but not just timeline based) theory:

The trial judge … granted the motion to substitute on 21 July 2022.  …  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.

As Dyer says:

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

The endgame as conceived by the Zhou regime may well turn out to be to use the smear and delay tactic to prevent an early reckoning on the extraordinary and probably lawless MAL Raid, and in the meantime press very hard to get the RICO suit dismissed. Desperate times call for desperate measures.