The Continuing Coup

Yes, what we’re seeing is the continuing coup of the Deep State against our constitutional republic. It’s being aided and abetted by a bipartisan coalition. My hope is that the GOP wing of that coalition will finally wake up to the fact that they’re the ones who will wind up marginalized. The goal is certainly to “get” Trump as a threat to the Deep State, but the Dem wing of the coup clearly hopes to turn the coup to their political advantage. They believe they can brand the GOP as the party of treason and thereby become The Ruling Party. In effect, inaugurate a One Party State.

Now, there will be a lot of talk in the weeks—and probably months—ahead. It will be framed in legalese and will appear confusing. The big picture that you need to be clear on is not terribly complicated. Others will probably do a better job explaining this than I can, but for now these are the basics.

There are, in effect, two types of laws governing the records that were seized in the MAL Raid. The first type is singular, i.e., there’s just one law of this type and it pertains specifically to the President—the Presidential Records Act. Here you can see that the PRA was enacted in a specific historical circumstance with specific ends in view:

The Presidential Records Act (PRA) of 1978, 44 U.S.C. §§ 2201–2209,[1] is an Act of the United States Congress governing the official records of Presidents and Vice Presidents created or received after January 20, 1981, and mandating the preservation of all presidential records. …

The Presidential Records Act was enacted in 1978 after President Richard Nixon sought to destroy records relating to his presidential tenure upon his resignation in 1974. The law superseded the policy in effect during Nixon’s tenure that a president’s records were considered private property, making clear that presidential records are owned by the public. The PRA requires the President to ensure preservation of records documenting the performance of his official duties (44 U.S.C. § 2203(a)), provides for the National Archives and Records Administration (NARA) to take custody and control of the records (44 U.S.C. § 2203(g)), and sets forth a schedule of staged public access to such records (44 U.S.C. § 2204). Records covered by the PRA encompass documentary materials relating to the political activities of the President or members of the President’s staff if they concern or have an effect upon the carrying out of “constitutional, statutory, or other official or ceremonial duties of the President” (44 U.S.C. § 2201(2)).[4]

Notably, the PRA:

Allows the incumbent president to dispose of records [during his term of office] that no longer have administrative, historical, informational, or evidentiary value, once he or she has obtained the views of the Archivist of the United States on the proposed disposal in writing.

There are no penalties for violation of the PRA.

The second type of laws are those cited in the warrant—”traditional” laws governing the handling of government records of various sorts:

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

Here’s my point in making this distinction. While the PRA changed the ownership status of presidential records, there has always been a recognition that presidents have an interest in those records. That interest has been recognized in practice. John Hinderaker at Powerline provides a guide to the “traditional” manner of reconciling the president’s interest in the records with the ownership provisions of the PRA—which I have excerpted. Note that disputes about presidential records largely revolve around identifying records that are “personal” in nature rather than being records of the performance of the president’s constitutional duties.

* President Trump, like other presidents before him, took files with him when he left the White House. There is nothing necessarily wrong with this. The Presidential Records Act, passed in 1978, says that the official records of a president are public property and belong to the National Archives. But a president can take with him, when he leaves office, personal papers as well as–a point that I haven’t seen made–copies of documents, as long as they are marked as such and he leaves a copy for the Archives.

* Trump, like prior presidents, has negotiated with the National Archives about the materials he took with him. Earlier this year, he sent 15 boxes to the Archives. Subsequently, it is reported that representatives of the Archives came to Mar-a-Lago to review approximately 15 more boxes that Trump still had in his basement. While they were doing the review, Trump came downstairs to greet them. I don’t think the contents of those boxes, the apparent target of the search warrant, are a mystery to the Archives or to DOJ. Maybe they were hoping to discover something new in Melania’s closets.

* The DOJ, in its many press leaks, mostly to its in-house media organ the New York Times, keeps talking about classified information. This is because no penalty attaches to violation of the Presidential Records Act. The Biden administration has to allege the commission of a crime, and that most likely explains its references to classified information.

* I have no idea whether classified information is included in the 15 boxes that Trump has in his basement or not. It wouldn’t be surprising. The serious criminal statutes on classified information relate to passing it on to, say, the Russians or Chinese. As far as we know, there is no suggestion that Trump gave classified information to anyone. He was perfectly entitled to know it and to view it himself; the issue is that he may have taken it to an unauthorized location, i.e., Mar-a-Lago. Until now, this has generally not been considered a serious offense. Sandy Berger is an exception, although he got a slap on the wrist. But in his case, the point was that he stole a document from the Archives, apparently something damaging to the Clinton administration, so as to delete it from the historical record. There is no such suggestion, as far as we know, with regard to Trump.

Trump has lived surrounded by lawyers his entire adult life. You can bet that his lawyers were punctilious in dealing with the National Archives, just as his tax lawyers kept him out of trouble with the IRS.

I think that what we’re going to find out is that most or all of the records that were seized in the MAL Raid could be legitimately regarded as subject to negotiation between President Trump and the National Archives. What DoJ and the FBI—or, more generally, the Deep State—are attempting to do is to transform this dispute into one that is governed not by the PRA but by federal criminal law. This, as many have observed, has never been done before. Moreover, as Hinderaker observes, the intent of the criminal statutes is quite distinct from the intent of the PRA. Technical violations of the criminal statutes happen—a lot. They aren’t prosecuted, because the intent of the law is not to prevent technical violations per se but to protect national security. The Deep State wants to blur these distinctions to prevent you from understanding what their game is.

The FBI and DoJ can allege that they feared Trump was violating or intended to violate one or all three of these statutes:

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

Intent to violate those laws should be difficult to prove—but we know that we now live under a legal system that is applied according to the political position of the defendant. The repeated reference to “classified” documents suggests 1) that the DoJ and FBI are attempting to prejudice public opinion against Trump, in that the general public has a poor understanding of what classification of federal government documents involves, and/or 2) knowing that the cited statutes will be difficult to prove the DoJ may settle for a lesser charge of “mishandling” classified documents—which, again, happens all the time. The problem with that approach, of course, is that the president has the last say regarding classification. Therefore #1 may be more likely.

The bottom line is that this looks like an attempt to criminalize what should be, in essence, a civil property dispute. There’s a reason why DoJ doesn’t want to release the affidavit that supported the search warrant application. That affidavit would have had to present probable cause—specific reasons to believe—that Trump had or intended to violate the named statutes. If made public, the entire case might well collapse. By hiding the ball, in a manner of speaking, they keep Trump under suspicion—to sideline him from politics. Well, that’s the hope. that strategy doesn’t appear to be playing too well and has the appearance not only of a double standard but of desperation.

One final note. There’s a major difference between the Trump situation and the Hillary situation—besides the fact that there is no Secretary of State Records Act. Hillary was maintaining official records on her private unsecured devices and using them in the performance of her official duties. One would have to presume that every competent intel service in the world—starting with the Russian and Chinese services—has Hillary’s records. That is not the case with the Trump records.