By Stephen Tuttle | August 27, 2022
A Republican candidate for Congress in western New York says Attorney General Merrick Garland should be executed. (He later claimed he was just being facetious.) A Republican candidate for the Florida House said he would introduce legislation making it legal to shoot federal agents from the FBI, ATF and from the IRS.
This madness – and madness is the nicest way to describe the behavior – is the continuation of an onslaught of attacks on our institutions from top to bottom over the past six years. The latest roadblock follows a warrant issued at former President Donald Trump’s Florida home for documents he took with him when he left the White House and, for reasons known only to him, did not return when asked and then subpoenaed.
Let’s go back.
In 1978, the Presidential Records Act (PRA) was passed as part of a bipartisan effort by Congress. These records, previously considered the private property of the president when he left office, became public property under the control of the National Archives and Records Administration (NARA) beginning in 1981. The law was comprehensive, defining the records presidential like all books, correspondence, memoranda, documents, papers, brochures, works of art, models, pictures, photographs, plans, maps, films and films, including including, but not limited to, audio and visual recordings, or other electronic or mechanical recordings, whether analog, digital, or any other form.
There were a few exceptions for records involving attorney/client communications or those covered by executive privilege, but the President is not the final arbiter of those exceptions – the National Archivist is. In other words, Donald Trump was not entitled to most of the documents he took away because they belong to the American public, not him.
NARA had already recovered 15 boxes of documents from Florida and had been told by a person identified only as a “Trump insider” that there were more, some of which were classified. They were not returned when requested by the Archives, a later subpoena was ignored, and a lawyer for Trump claimed there were no classified documents in Trump’s possession.
(Whether the documents have been classified or not is irrelevant to the PRA; all records must be turned over.)
Concerned about what these documents might contain, a request for a search warrant was granted by a magistrate on the basis of sufficient probable cause. The search warrant was served by FBI agents who did not “break and enter” or “trash” the former Mar-a-Lago president’s home. And – surprise, surprise – they found boxes of additional presidential documents. According to the National Archives, Trump took 700 classified pages with him to Florida, including some marked near the top of the top-secret pyramid.
Trump then claimed that he had “declassified” all the documents he had taken, or that they were all somehow privileged, or some other excuse.
While it is technically possible for a president to arbitrarily and independently declassify documents, making them available to the general public, that would be incredibly reckless. There are many reasons why an agency that classifies documents would want them to stay that way. Such declassification could impede an ongoing investigation, reveal the identity of human property and put it at risk, or reveal military plans or strategies or new weapon systems. This is why the military and law enforcement agencies have always, until now, been consulted before the declassification of any document. These documents are so marked then, but none of that transpired this time.
So, still able to expertly deflect yet another scandal, Trump’s allies decided to play What About Game.
Well, what about Hillary, her private server, and all those lost emails? She was not president, there was no detectable threat to national security, and although her record keeping was called “negligent”, she was not prosecuted. This decision was made by the attorney general and the director of the FBI, both appointed by Trump.
So what about Hunter Biden and his laptop? He is not the President or any elected or appointed official, is still under investigation and his actions and those of Trump are in no way comparable.
What about Obama taking over 30 million files to Chicago? This one is just a blatant lie distributed by Trump supporters. Obama’s records were properly turned over according to the National Archives. Those that were, and still are, classified are in a safe place in Washington, the rest in an Archives warehouse in Chicago.
Trump may not have read most of these files or even known what was in them. He could and should have just said “Oops” and returned them. There would have been no search warrant and surely no negative consequences. But he preferred to play the victim and continue to poison his already irrational base. No more division, no more anger, no more dishonesty.
More of the same.