Tuesday, September 20, 2022

🤷🏻‍♂️

 This is almost clever:

The Government again presupposes that the documents it claims are classified are, in fact, classified and their segregation is inviolable. However, the Government has not yet proven this critical fact. The President has broad authority governing classification of, and access to, classified documents. See Dep’t of Navy v. Egan, 484 U.S. 518, 529 (1988).

Congress provided certain parameters for controlling classified information but primarily delegated to the President how to regulate classified information. 50 U.S.C. § 3161. At the same time, Congress exempted the President from complying with such requirements. Id. § 3163 (“Except as otherwise specifically provided, the provisions of this subchapter shall not apply to the President . . . .”).

President Obama enacted the current Executive Order prescribing the parameters for controlling classified information in 2009. See Exec. Order 13526 (Dec. 29, 2009). That Executive Order, which controlled during President Trump’s term in office, designates the President as an original classification authority, Id. § 1.3(a)(1), and grants authority to declassify information to either the official who originally classified the information or that individual’s supervisors—necessarily including the President. Id. § 3.1(b)(1), (3). Thus, assuming the Executive Order could even apply to constrain a President, cf. 50 U.S.C. § 3163, the President has absolute authority to declassify any information. There is no legitimate contention that the President's declassification of documents requires approval of bureaucratic components of the executive branch. Yet, the Government apparently contends that President Trump, who had full authority to declassify documents, “willfully” retained classified information in violation of the law. See 18 U.S.C. § 793(e); AA66. Moreover, the Government seeks to preclude any opportunity for consideration of this issue.

There's a legitimate issue of presumption here:  does the Court presume documents are classified until proven otherwise?  Is that burden, IOW, on the plaintiff (Trump) or on the Government (defendant)?  I don't know the state of the law on that issue, but I'm sure there is one. On that point, in fact, I defer to Asha Rangappa:

But notice how dodgy this is:  the lawyers never say Trump declassified the documents in question.  They only say the government hasn't proven he DIDN'T declassify them (which doesn't exactly shift the burden of proof to the government).  They also say Trump has "broad authority...and access to...classified documents."  As President he does.  Not as a former President.  Again, playing fast and loose with the law.

Ultimately, it's an evidentiary issue; which, being an appeal, is what they are counting on (Appeals courts can't solicit evidence; it must come in the record from the court below): The problem for Trump is, will the 11th Circuit find the trial court abused its authority by assuming the validity of Trump's non-assertion (he's never claimed in court that the documents were declassified) or by rejecting ipse dixit (you'll see) the evidence actually presented by the government?

Also:  is that really the issue?

It does matter to the government:

Which can make it matter to the 11th Circuit; but not in the way Trump wants.  In fact, DOJ's argument there works directly against Trump's argument in his brief.  Odd he doesn't address that issue, though.

And then there's the aid from the "cavalry":

"Take the Administration’s resort to procedural gamesmanship to overcome adverse judicial decisions."

"Or consider the Biden Administration’s collusion with private parties to circumvent ordinary rules for administrative rulemaking." 

"When it is unable to engage in procedural gamesmanship to cast aside unfavorable judicial decisions or engineer a collusive settlement to preempt them, the Biden Administration has resorted to blinding itself to adverse precedent and its prior representations altogether."

Those are quotes from the amicus brief.  Those are not legal arguments.  They read more like extracts from Twitter.  And why are the collected heads of the Attorneys General of 11 states making an argument like this?  Because the district judge's ruling is indefensible:

The Biden Administration’s track record supports the district court’s refusal to credit the Administration’s ipse dixit about the contents of documents it seized during its raid of President Trump’s private residence. 

In other words, it's a lame assault on the credibility of the government, by attacking Biden's policies which they, as Republicans, don't favor.  I mean, who you gonna trust, judges?  A serial liar like Trump?  Or those FBI agents who now work for the Biden Administration?

I don't think the 11th Circuit will be impressed.

Then follows in Trump's brief a longish argument about the Presidential Records Act, summed up by this footnote:

The ultimate disposition of all the “classified records,” and likely most of the seized materials, is indisputably governed by the provisions of the Presidential Records Act (“PRA”). See 44 U.S.C. §§ 2201, et seq. Thus, at best, the Government might ultimately be able to establish certain Presidential records should be returned to NARA.  

There's two problems with that argument:

1) "The United States shall reserve and retain complete ownership, possession, and control of Presidential records; and such records shall be administered in accordance with the provisions of this chapter."

2)  "The United States District Court for the District of Columbia shall have jurisdiction over any action initiated by the former President asserting that a determination made by the Archivist violates the former President’s rights or privileges. "

Trump's making the wrong argument in the wrong court.  He brought this suit, not the DOJ.  He can't raise claims under the PRA in Florida.  EOD.  And he can't make a rule 41 claim to recover the documents.  If they are "Presidential records," he has no right to them.  If they aren't, he needs to be in DC arguing his claims under the PRA.

The rest of the brief covers the question of "irreparable harm" (the standard for lifting or modifying the court order) and jurisdiction for an interlocutory appeal.  Sensible pleading, that, and I'm in no position to critique the arguments made.  But I'm not impressed  with the "classified records" that may or may not be (who's the government to say they are, amirite?) argument, or the invocation of the PRA, which does their case far more harm than good.

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