And Another Thing!

This post explains why frothers are PROBABLY wrong about the VP's authority to declassify and LIKELY wrong about 18 USC 1924. https://t.co/fNdei9jRmi

— emptywheel (@emptywheel) January 15, 2023

An interesting (and valid!) point in all the palaver:

In reality, Trump didn’t declassify these documents, nor did Biden. Trump has now waived his opportunity to claim he declassified these documents legally repeatedly. (Biden could have legally declassified them when he found them; instead he returned them to the Archives.) (emphasis added)

If Biden had really wanted to muddy the waters, he could have simply declassified those documents and ended even a DOJ investigation (what is there to investigate? Maybe a counterintelligence investigation (arguably). But criminal? Not at all.) And that, frankly, would have been a Trump level scandal.

Just as it should be that Trump keeps insisting he declassified the MAL documents even as there is no evidence nor argument in court supporting that claim. What the hell kind of administration was he running?

LOOK!  OVER THERE! ANOTHER PIECE OF PAPER!!! <baying of the press hounds in hot pursuit fading over the horizon>

But yeah, what Trump did is what Biden did because something something something.

And I will say again:

I'm generally used to Trump's brazeness, but his current argument of "I arrived at Mar-a-Lago before noon on Jan. 20, 2021, ergo any papers there belong to me" even makes me gape a bit. https://t.co/T7RQN8xCxC

— Gary Legum (@GaryLegum) January 15, 2023

And of course, not that he would admit or even understand the real issue, but it's not the docs being in his possession that is the issue, it's the lying and obstruction he did to keep them away from the National Archives that he's in legal trouble for.

— Gary Legum (@GaryLegum) January 15, 2023

Most of this conversation falls in the zone of Trump’s “legal analysis:” wrong from the start.

The courts will be concerned with the lying and the obstruction. “Fortress MAL” and “I declassified them with my mighty POTUS mind” and “Biden! Biden! BIDEN!!” won’t mean diddly.

Neither will this “national discussion.” Like “Seinfeld,” it’s about nothing.

[I will add here, because emptywheel analyzes this point, that “officers” and other persons specified in 18 USC 1924 can be charged with removing classified documents from secure facilities (like boxing them up when your job ends), but POTUS and VPOTUS arguably cannot, because as Constitutional officeholders they are not “officers” under the statute.

But DOJ is investigating Trump for violation of 28 USC 793. The problem is not taking documents (as Biden did), it’s refusing to give them back (as Trump did, and where 793 applies). Which could mean, if the 1924 analysis is correct, that unless Biden violated 793, there really is nothing to see here, and we can all move along.]