More Light On The MAL Raid's Legal Rationale
I have another busy day coming up, so I want to quickly get this out. I’ll be referring to Margot Cleveland’s new article that contains within it explanations for what’s going on. Those explanations draw on the FBI’s affidavit with its references to both the Presidential Records Act (PRA) as well as more general records handling statutes (prominently the Espionage Act of 1917). Importantly, however, Margot draws from the response by Trump’s legal team, which elucidates important legal principles regarding the POTUS.
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First, recall what I’ve said as a general matter. I pointed out that the DoJ/FBI would attempt to confuse the public by mixing rationales drawn from the PRA and the Espionage Act (there are other records handling statutes, but I’ll use the Espionage Act to be brief). Key to that attempt is the principled sounding assertion that “no one is above the law.” However, as I pointed out, while that general proposition is undoubtedly true, it is equally true that not every law applies to every person. As I maintained, the anti-Trumps want you to think that the POTUS is no more than a clerk, an official who is subject to all the same regulations that every other clerk in goverment service is subject to. But that’s not true. Under our Constitution the POTUS, the Commander in Chief, is unique. He is not simply a clerk or an employee of the US Government.
So, with those guidelines in mind, I’ll quote from Margot’s article, which in turn quotes from original sources:
The entire article is worthwhile, but may prove rough going for general readers. For that reason I’m excerpting the portions that illustrate and explain the principles I just set out, again. These will serve as guidelines to get past all the gaslighting. So …
First of all, the affidavit states that the FBI is conducting a criminal investigation based on a referral from the National Archives people—despite the fact that the PRA doesn’t have criminal provisions. That’s a clue that there’s some monkey business going on:
“The government is conducting a criminal investigation concerning the improper removal and storage of classified information in unauthorized spaces, as well as the unlawful concealment or removal of government records,” the affidavit opened, before noting that “the investigation began as a result of a referral the United States National Archives and Records Administration (NARA) sent to the United States Department of Justice (DOJ) on February 9, 2022.”
This, as Margot says, is a sham. It’s a sham precisely because the POTUS is not a government employee. This is key.
The Presidential Records Act, however, expressly excludes specific documents from the definition of “presidential records,” including any documentary materials that are “official records of an agency,” “personal records,” or “extra copies of documents produced only for convenience of reference, when such copies are clearly so identified.” …
Note this exception especially: documentary materials that are “official records of an agency.” That would include all FBI and DoJ and Intel Community records, which most reasonable people believe were targeted by the raid. Since those records don’t come under the PRA that “referral”—presented as the rationale for opening a criminal investigation—was clearly a sham, a pretext.
I’ve edited what follows, by arranging the points in bullet fashion:
The public (understandably) may wish to sidestep the minutia of the mandates of the Presidential Records Act, but three top-line takeaways prove imperative to understanding the scandal of the Mar-a-Lago search.
First, the Presidential Records Act is not a criminal statute, and violations of that federal law do not constitute a crime.
Second, the Presidential Records Act does not reach broad swathes of documents retained by a former president, including “official records of an agency,” “personal records,” and convenience copies of presidential records.
And third, the courts have refused to question a former president’s conclusion that a record constitutes a “personal record” and not a “presidential record.”
Two additional legal points require expansion for the populace to fully grasp the outrageous overreach of the DOJ, which was further exposed in the partially unsealed affidavit.
The first legal principle of note concerns a president’s power to declassify documents. As Trump’s attorney stressed in a May 2022 letter to the DOJ, which the government released along with the redacted version of the search warrant affidavit, “a president has absolute authority to declassify documents.”
Before you read further, consider that statement. This authority of the POTUS makes him unique. No government official or employee has that authority—only the POTUS, from whom the authority to classify is derived, has its origin. Note what Evan Corcoran says next: The POTUS’ authority in this regard is not constrained by Congressional statutes, because it is inherent in his Constitutional status.
“Under the U.S. Constitution, the President is vested with the highest level of authority when it comes to the classification and declassification of documents,” Trump’s lawyer Evan Corcoran explained in his correspondence with the DOJ. Citing both the Constitution and Navy v. Egan, 484 U.S. 518, 527 (1988), wherein the United States Supreme Court wrote, “the President’s 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,” Corcoran countered the DOJ’s attempt to frame NARA’s discovery of documents marked “classified” as warranting a criminal investigation.
Trump’s lawyer stressed a second significant legal principle in the same letter, writing that “presidential actions involving classified documents are not subject to criminal sanction.” Then, after noting that “any attempt to impose criminal liability on a President or former President that involves his actions with respect to documents marked classified would implicate grave constitutional separation-of-powers issues,” Corcoran wrote: “Beyond that, the primary criminal statute that governs the unauthorized removal and retention of classified documents or material does not apply to the President.”
Corcoran is repeating what Mike Davis has said. The Espionage Act provisions regarding handling of documents simply doesn’t apply to the POTUS. And here Corcoran gets to the heart of the matter. The Espionage Act targets officers, employees, contractors, and consultants of the United States. The POTUS isn’t one of those:
The attorney for the former president then quoted the statute [the Espionage Act] that criminalizes the removal, possession, or retention of classified materials before stressing that “an element of this offense, which the government must prove beyond a reasonable doubt, is that the accused is ‘an officer, employee, contractor, or consultant of the United States.’” “The President is none of these,” Trump’s attorney continued, before concluding, “thus, the statute does not apply to acts by a President.”
The president is, precisely, the president of the United States—only one person in the world qualifies for that office at any given time. The POTUS isn’t hired, nor is he a member of Legislative or Judicial branches. He is elected as the Chief Executive—in effect, he IS the Executive Branch. All others below him working for departments and agencies are “officers, employees, contractors, consultants”. The president is none of those—he’s simply the President, the Commander in Chief, from whom derives the authority to classify. This is what the Zhou Regime is trying to conceal and confuse, in order to protect their own misdeeds and to exclude Trump from public life.
Margot quotes the conclusion to Corcoran’s letter:
Corcoran closed his letter by reminding the DOJ of its obligation “to be candid in representations made to judges,” and requested that a copy of the lawyer’s letter be provided “to any judicial officer who is asked to rule on any motion pertaining to this investigation, or on any application made in connection with any investigative request concerning this investigation,” as well as “any grand jury considering evidence in connection with this matter, or any grand jury asked to issue a subpoena for testimony or documents in connection with this matter.”
I’m pretty sure judges will understand all this and will realize that their own independence as a separate branch of government is also at stake. Make no mistake about it, this is an unprecedented power grab that would turn our constitutional order on its head, with the Deep State in charge over all branches.