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The Clinton Precedencies and Mar-a-Lago Search
It always ends up back with the Clintons, doesn’t it? The laws Trump may be charged under at Mar-a-Lago appear to have been violated by both of the Clintons, yet the two were never searched, never mind charged and prosecuted. Any action against Trump must account for that to preserve what is left of faith in the rule of law applied without fear or favor, or risk civil disenfranchisement if not outright civil unrest.
The more obvious case involves former Secretary of State Hillary Clinton, who maintained an unsecured private email server which processed classified material on a daily basis. Her server held at least 110 known messages containing classified information, including e-mail chains classified at the Top Secret/Special Access Program level, the highest level of civilian classification, that included the names of CIA and NSA employees. The FBI found classified intelligence improperly stored and transmitted on Clinton’s server “was compromised by unauthorized individuals, to include foreign governments or intelligence services, via cyber intrusion or other means.” Clinton and her team destroyed tens of thousands of emails, potential evidence, as well as physical phones and Blackberries which potentially held evidence. She operated the server out of her home kitchen despite the presence of the Secret Service on property who failed to report it. Her purpose in doing all this appeared to have been avoiding Freedom of Information Act requests during her tenure as SecState, and maintaining control over what records became part of the historical archive post-tenure.
Clinton seems to have violated all three statues Trump was searched under:
— 18 U.S.C. §§ 793, “Gathering, transmitting or losing defense information” says “Whoever, for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation…” This law is part of the infamous Espionage Act of 1917. Parts of the Espionage Act also includes a gross negligence standard, meaning a prosecutor does not have to prove specific intent in all cases. That Clinton’s server was compromised strongly speaks to the question of injury to the United States.
— 18 U.S.C. §§ 2071, “Concealment, removal, or mutilation generally of an record…” is a no-brainer for Clinton, given that she destroyed thousands of emails, physical hard drives, and handheld devices.
— 18 U.S.C. §§ 1519, The “anti-shredding provision” which imposes criminal penalties on anyone who (emphasis added) “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede or obstruct an investigation.” Clinton destroyed much of the data during an investigation into her communications, satisfying intent. Her overall intent was to block FOIA requests, and might speak to intent to impede or obstruct some investigation that required the full diplomatic record be made available.
Absent a trial no one can say conclusively Clinton was guilty of what Trump is likely to be charged with, but the basic elements are there. That is not the point anymore anyway. The point is that if the FBI is going to take a similar fact sets and ignore one while aggressively pursuing another, it risks being seen as partial and political. Any further action against Trump and certainly any prosecution of him must address why Hillary was not searched and prosecuted herself. Fair is fair, after all.
And then there’s Bill Clinton. Bill made a series of some 79 audio tapes from 1993-2001 with a historian inside the Oval Office, sometimes recording his thoughts and decision making, other times directly recording his phone calls. He kept the raw tapes himself after a book was published in 2009, actually storing them in a dresser drawer inside the White House residence. Judicial Watch sued Bill for the tapes claiming they were presidential records and had to be made available to the public through the National Archives, aka NARA, and that the Archives needed to seize the tapes. Clinton argued they were personal records outside the control of NARA.
In directly contravening what is happening with Trump, the court ruled in 2012 “NARA does not have the authority to designate materials as ‘presidential records,’ and NARA lacks any right, duty, or means to seize control of them.”
Judicial Watch argued the Clinton tapes should have been included among the presidential records transferred to the Archivist at the end of the Clinton presidency, but Bill retained them in his personal possession when he left office and refused to produce them for use by Judicial Watch nor hand them over to NARA, considering them his own property just like the underwear and socks he stored the tapes among in his dresser. Judicial Watch lost the case and never appealed, and the tapes presumably remain with the Clintons.
As with the Hillary case, any prosecution of Trump for dispossessing presidential records must address the precedent set in the Bill Clinton case, i.e., the simple assertion by Bill that the tapes were his personal property. More significantly, going forward on the Trump case the DOJ must address the court’s decision in the Bill Clinton case that “NARA does not have the authority to designate materials as presidential records, and NARA lacks any right, duty, or means to seize control of them.” In other words, for what Trump had in his possession to be government records, someone would have had to designate them as such. The court in Judicial Watch v. NARA said NARA could not make such a designation, and the FBI certainly is not legally the one to do it. Could it be the president himself designates when a record is official and when it is personal?
Sort of. It appears a president’s discretion on what are personal vs. official records is far-reaching and solely his, as is his ability to declassify or destroy records at will. Per Judicial Watch, “under the statutory scheme established by the Presidential Records Act (PRA) the decision to segregate personal materials from presidential records is made by the president, during the president’s term and in his sole discretion… Since the president is completely entrusted with the management and even the disposal of presidential records during his time in office, it would be difficult for this Court to conclude that Congress intended that he would have less authority to do what he pleases with what he considers to be his personal records.”
Now to be fair there is a fair amount of case law trying to define more clearly what is a presidential record and what is a personal record. There are also mechanisms to try and resolve differences of opinion between a president and NARA. But none of those mechanisms are criminal, and none seem to involve physically seizing documents under a search warrant. It is clear the PRA does not bestow on the president the power to assert sweeping authority over whatever materials he chooses to designate as presidential records without any possibility of judicial review. But NARA on the other hand cannot do so either. The battleground under the PRA is the courts, not the back rooms at FBI headquarters.
If Trump were to designate a record as personal, not presidential, and NARA disagreed, it appears the standard mechanism (as shown in the Bill Clinton case) would be to go to court to redesignate the record. Step One (as in the Bill Clinton case) is not for the FBI to seize the record acting as some Solomon-like neutral party between the president and NARA. The bottom line is Bill Clinton was able to hold on to his audiotapes as personal records, and the tapes were never seized by the FBI under threat of the Espionage Act.
Any attempts to move the Trump case forward as a criminal one will first need to explain how it differs from the Bill Clinton case. If DOJ can’t do that — as well as differentiate Trump from Hillary Clinton and her server — then they have no basis to claim they are enforcing the law without fear or favor. It will be just plain old political hackery, using the criminal justice system to defeat Trump when the electoral system will not. That’s Third World stuff, skippy.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
I Can’t Do It Again: Hypocrisy, Tara Reade, and Joe Biden
Tara Reade says Joe Biden once grabbed her privates and demanded sex. Will it change the election in November?
The Brett Kavanaugh Supreme Court hearings were a turning point, where the presumption of innocence was thrown out in favor of a new standard, “credible accusation.” Evidence was replaced by #BelieveAllWomen. Fierce justice then, but now it’s Biden’s turn. Imagine the same type of proceedings directed at him. Amy Klobuchar repeats her accusations Kavanaugh, er, Biden, is a drunk, with just about as little evidence now as then. Senator Dick Durbin demands Biden demand an FBI investigation into himself on live TV. Durbin fires at Biden as he did to Kavanaugh if he has nothing to hide he has nothing to fear, a line often attributed to Joseph Goebbels. Kamala Harris goes in as bad cop, righteously shouting down whatever is said to her by Biden. The truth? You can’t handle the truth.After that show, imagine a second one where Elizabeth Warren, long-shot Biden VP pick Florida Representative Val Demings, Kirsten Gillibrand, Stacey Abrams, and Michigan Governor Gretchen Whitmer all show up to stand by Biden, not believe Reade, say Reade deserves to be heard before she is dismissed, and/or remain silent when asked. That TV show will be shorter.
To flesh things out maybe on that short TV show women voters could call in to ask those women Democratic leaders how the very serious business of #MeToo got turned into just another political tool by the “party of women.” Alyssa Milano, famous for the #MeToo meme and whose take on the Kavanaugh hearings was she believed all women without the need for due process, could be brought out to explain how now “the notion that this should be disqualifying to Biden in a race against Trump is patently ridiculous. Anybody who claims otherwise is using sexual assault as a political football.”
Well, yes, that is the point. Dems made sexual assault a political football. Problem is now they find themselves on defense for the first time (having ignored successfully Bill Clinton’s hands-on approach.) One article does what I just don’t have the breathe to bother with, pull up exact quotes of what was said about Brett Kavanaugh and his accuser then and compare it to what is being said about Biden and his now. It unveils the total hypocrisy of the #MeToo positions, and how self-righteous Dems are when these techniques were used by them, versus used against them. Watching people force themselves to support Biden under these conditions is what I imagine the Beach Boys look like backstage trying to mix up Viagra and meth so they can get through “Surfin’ USA” one more time.Meanwhile, more and more women are realizing Democratic hypocrisy is setting back women’s rights, making it clear women’s concerns are useful and valid only as political weapons, victims only of use to tee up a media storm. The impact on the election will be…
Sorry. I just can’t do it again. It’s the same thing. Isn’t it obvious? Isn’t the false narrative plain? But isn’t it likely very few people care, again? The pattern is beyond the obvious, the addition of new player Joe Biden the only change. I can’t get away from it. People just believe what they want to agree with.
I even started a story on Politico’s fully debunked claim Trump was beholden to the Bank of China because of some loan. That one fell apart faster then I could type it up. Too many believe when the Democrats and MSM tell us these things. They are all wrong. Why is anyone believing them now? I am tired of being lied to. I am tired of being manipulated in the most obvious ways. After Kavanaugh, the Democrats simply announcing “Biden didn’t do it, nothing to see here, folks” is beyond insulting. I am weary of talking people off the ledge, even more weary of living among people who are convinced they are going to die freedomless in the dark from a new cause each day. I am tired of this:
Trump didn’t win the election.
The Emoluments Clause will stop Trump from being inaugurated.
The economy will descend into a depression after he was inaugurated.
There is a pee tape.
Trump is a Russian spy, an asset, Putin’s puppet.
Michael Cohen met with the Russians in Prague.
(Mohammed Atta met with the Iraqis in Prague.)
Trump sold out the U.S. to build a hotel in Moscow.
Trump wants to buy Greenland to build a hotel.
Trump left the Saudis off the No Fly Muslim list because he had a hotel there.
Trump will start a war with Iran over moving the U.S. Embassy to Jerusalem.
Trump will start a war with Iran over the nuclear treaty.
Trump will start a war with Iran to distract from COVID.
The Kurds will all die in a genocide.
We have to take out Assad (and earlier, Saddam, and Qaddafi,) or there will be a genocide.
Trump’s trade war with China will bankrupt us.
Trump will start a nuclear war with North Korea.
Trump’s peace overtures with North Korea are dangerous.
Kim Jong Un is dead.
Trump will invade Venezuela.
Trump will withdraw from NATO.
(Iraq has weapons of mass destruction.)
James Comey will change everything.
Robert Mueller will change everything.
SDNY will change everything.
Michael Avenatti will run for president.
Papadopoulos, Manafort, Flynn, Cohen, will flip and bring down Trump.
Beto, Cory Booker, Mayor Pete, Kamala, AOC, Stacey Abrams are the new Obama.
Diversity is the key to Democratic victory in 2020.
The rule of law ended in America.
Democracy died in America.
It’s Weimar.
It’s the fall of Rome.
Impeachment will end Trump’s time in office.
The 25th Amendment will end Trump’s time in office.
The Whistleblower will end Trump’s time in office.
Marie Yovanovitch will end Trump’s time in office with her testimony.
John Bolton will end Trump’s time in office with his book.
Ronan Farrow will end trump’s time in office with his book.
The Parkland Kids will change everything.
The Covington Kids are racists.
Two million Americans will die of corona.
Blocking visitors from China is racist and ineffectual.
There are not enough ventilators.
There is not enough PPE.
There are not enough ICU beds.
The Chinese supply chain will stop and no more iPhones.
Trump is going to defund the Post Office to block mail-in ballots so he can steal the election.
Trump is going to fire Mueller, Barr, Rosenstein, Mattis, Jared, Ivanka, Pence, Bolton, Fauci.
Trump avoids the press and hasn’t held a briefing in a year, bring him out.
Networks should not air Trump’s open mic night briefings.
People will die if my neighbor doesn’t wear a paper mask but lukewarm delivery food is safe.
People in NYC will die if Starbucks opens but it’s OK for the subway to run.
The stock market’s historic rise doesn’t matter for Trump’s reelection because most Americans don’t own stock.
The stock market’s historic decline will destroy Trump’s reelection chances.
If we end the lockdown too soon everyone is going to die.
Those who fetishize Trump’s lies want to stand on their record above without irony. Lies are truth, what is really true doesn’t matter if people (can be made to) believe it because truth is moral only when it supports the correct side. Hypocrisy just mens choosing the lesser of two evils. Maybe that’s the best we deserve in a world where “do your research” means Google something and accept the first headline you agree with.Accountability takes a seat to agenda. The end justifies the means over and over but never leads to good. “Oh, it’s OK, he beats me less than my previous spouse.” Trump’s hidden taxes are bad but Biden’s hidden Senate papers on Tara Reade are acceptable. Ivanka and China? Hold my Tsingtao beer, says Hunter. “You think I’ve got dementia? You should see the other guy!” Never mind Biden mare-nuzzling women’s hair on numerous occasions. Then there’s Anita Hill. Did being Obama’s VP baptize away those sins?
Same thing in the end, just purposed toward what are sold as radically different ends, Gray Man instead of Orange Man. Choose Joe, he harasses women, gets health draft deferments, plagiarized in law school, cheats on his taxes, is corrupt with his kids’ money, but less. It doesn’t matter what happened to Tara Reade, anymore than it matters what happened with Russia. It wouldn’t matter if Biden sexually harassed someone in the middle of Fifth Avenue. As one editorial summarized, “He’s not perfect, but he’s not Donald Trump.”
I once wrote in reference to the lies we told ourselves about success in the Iraq War if “b.s. was water we’d all have drowned.” Now it appears Democrats and the MSM have not only learned to adjust to a new environment like some prehistoric amphibian but are politically wallowing in it, at least prior to choking come November.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
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