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Indictments over Classified. Not Biden, and Not Pence. So Why Trump?
Donald Trump is the first president in history to be indicted for Federal crimes, in this case a series of eight charges each with multiple counts totaling 37 centering on his taking highly classified materials with him to Mar-a-Lago from the White House in January 2021. The charges also implicate Trump and a close aide, Waltine Nauta, in a conspiracy to hide the documents in whole or in part from the National Archives (NARA), the Department of Justice (DOJ), and his own legal team, and making false statements along those same lines.
Hundreds of documents are of concern, classified at the highest levels with origins at CIA, NSA, and elsewhere in the intelligence community. While leaks and speculation prior to the unsealing of the indictment suggested this was a routine Espionage Act case, i.e., you have possession of some classified documents and thus must be guilty, the indictment lays out a damming parallel set of evidence for obstruction, including a suggestion that Trump was prepared to have his lawyers shred some of the offending documents.
Though Biden’s handling of classified remains an active investigation, Mike Pence was recently absolved of any criminal intent in his own mishandling of secret paper. Many people believe the same result will come of the Biden case. What makes Trump’s case so materially different that the Special Prosecutor is prepared to throw the book at him and his aide?
The key seems to be the egregiousness of Trump’s actions coupled with his attempt to cover up his actions. Lawyers call it an “aggravating factor,” making clear the charged actions were not accidental. It looks like they may have it.
The indictment shows in great detail efforts Trump made to conceal the documents both from NARA and the DOJ, and from members of his own legal team. Dozens of boxes containing mementos and paperwork from his administration were assembled by Trump over his four years in the White House. These included, all mixed together, everything from newspaper clippings to notes from Kim Jong Un to highly secretive war plans aimed at Iran. These boxes were transported to Mar-a-Lago by commercial means, itself a violation of numerous security regulations. Within Mar-a-Lago the documents were not always kept under lock and key, at one point being piled on the stage in one of the ballrooms (a photo of this is included with the indictment; another included photo shows boxes spilling classified documents onto the floor of a storage room, and a third showing the boxes in a shower room.) There is evidence to suggest Trump instructed his staff to better hide some of the documents from his own lawyers when they undertook a search in response to a NARA subpoena, and then again ahead of the FBI search of Mar-a-Lago. This may have led to Trump losing two lawyers just hours after being indicted, as Jim Trusty and John Rowley announced they’d resigned.
Further under the heading of egregiousness, the indictment suggests a tape recording exists of one of at least two instances where Trump showed off the documents to people without security clearances. In the tape Trump admits the document at hand is classified, and in a schoolboy-like way says he should not be showing it to a writer, a publisher, and two Trump staffers. Trump acknowledging that he knew a document in his possession was still classified stands at odds with his public claims that he had declassified all the materials he took and likely removes this defense strategy from the upcoming trial.
The indictment further claims Trump obstructed the investigation into his handling of classified materials in a number of ways, to include telling his attorneys to claim he did not have the documents subpoenaed, directing his aide Nauta to move boxes to conceal them from his own lawyers, and then from the FBI/DOJ and then from the grand jury, suggesting his lawyer destroy some of the documents, claiming he was cooperating fully when he was actively concealing documents from disclosure, and submitting a false certification that all requested document had been submitted. Nauta is listed as a co-conspirator on most of those allegations, with phone records and internal surveillance tapes connecting statements made and actions taken by the two men.
Trump also appears to have used the boxes moving like a shell game to hide information from Christina Bobb, who was serving as the formal custodian of records. The indictment makes clear she did not know the statements in her attestation that everything had been turned over to the DOJ were false, and she has not been charged.
The indictment also claims Trump helped to pack boxes at the White House, which rebuts a common defense in these sorts of cases, that the retention of documents was a clerical error by staff and not intentional.
While understanding the contents of the indictment give only one side of the story and that Trump will defend himself when the case comes to trial likely in the spring, the evidence available seems significant. Trump clearly possessed classified documents outside proper storage areas, and “injury to the United States,” a requirement of the law, should be fairly easy to prove given the dramatic nature of some of the documents and the casual manner in which Trump handled them, to include showing off war plans to a writer and publisher. This part of the case follows standard lines in an Espionage Act prosecution. Trump’s actions appear to go well beyond anything Mike Pence did with his classified or anything that Biden has so far been accused of.
However, it is the charges of obstruction which are most significant in this case. One of the key elements of obstruction is proving a state of guilty mind — mens rea — and that will be the crux of the actual prosecution based on the Mar-a-Lago documents. What was Trump thinking at the time, in other words, did he have specific intent to obstruct some investigation? A jury might find Trump’s actions alone speak to intent, his active attempts to hide physical boxes of documents from first his lawyers and then investigators, for example.
But the joker in the deck is Waltine Nauta, Trump’s close aide who is charged alongside Trump on the obstruction and lying allegations. Nauta faces potentially decades in jail, serious time. It appears his being charged may be an attempt to get him to testify directly to Trump’s intent and state of mind, by recalling actual instructions and conversations. If Nauta accepts some sort of plea deal in return for such testimony, it is hard to see a jury letting Donald Trump off on these charges. But where things go after that, politics-wise, is anybody’s guess at this early stage.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
The Real Trump Witchhunt
Concerned the law be applied equally to all? Worried about political witch hunts? You should be, only you’re likely worried about the wrong case.
While Trump’s will-he-or-won’t he indictment saga in New York sags on, it’s a magician’s trick of misdirection. The real witch hunt and challenge to the rule of law is ongoing in the Mar-a-Lago classified documents case where the government will force one of Trump’s own lawyers violate attorney-client privilege and present evidence against his client, Trump, in regards to handling classified documents.
A federal appeals court ruled earlier this month a lawyer for Donald Trump in the investigation into his handling of classified material had to answer a grand jury’s questions and give prosecutors documents related to his legal work against his will and in violation of attorney-client privilege, which typically makes communications between a lawyer and his client private and out of the reach of prosecutors. The ruling by the U.S. Court of Appeals for the District of Columbia was a victory for the special counsel overseeing the investigation and followed Trump’s effort to stop his lawyer, Evan Corcoran, from handing over what are likely to be dozens of implicating documents to investigators. He’ll have to give up what was shared once with him in confidence.
The gist of the matter is that at one point, when asked if there were any additional classified materials at Mar-a-Lago, Trump ordered his lawyers to prepare a statement stating “no,” that all classified had been turned over to the government. Based on Trump’s statement to them, the lawyers, including Corcoran, wrote to DOJ that a “diligent search” for classified documents had been conducted at Mar-a-Lago in response to a subpoena. That claim proved untrue as FBI agents weeks later searched the home with a warrant and found roughly 100 additional documents with classified markings. The Justice Department now claims Trump lied to his own attorneys in claiming no classified documents, possible crimes of fraud and obstruction in defying the government’s efforts to reclaim classified materials.
Attorney-client privilege is a legal principle that protects communications between a lawyer and his client from being disclosed to others, including the courts. This privilege is intended to encourage clients to be open and honest with their attorneys, which in turn helps attorneys provide effective legal representation. Any information or communication exchanged between a lawyer and his client is protected from disclosure, as long as it was made in confidence for the purpose of seeking legal advice or representation. This includes not only written and oral communications, but also any documents or materials shared with the attorney. The privilege belongs to the client and not the attorney, meaning that it is the client who has the right to assert or waive the privilege, as with Trump.
There’s a long history to attorney-client privilege, dating back to the ancient Roman and Greek legal systems. In the 16th century, English courts recognized the concept of legal privilege, which included the privilege of lawyers to refuse to testify against their clients in court. By the 18th century, the concept had expanded to protect all confidential communications between attorneys and their clients. In the United States, the attorney-client privilege was recognized early on in the development of the legal system. In 1810, the U.S. Supreme Court established privilege in the case of United States v. Burr. The Court held that communications made by a defendant to his attorney for the purpose of obtaining legal advice were privileged and could not be used as evidence against the defendant. Since then, the attorney-client privilege has been recognized and upheld by courts across the United States. It’s a big deal and one of the cornerstones of fairness in our system.
In the Trump case, the Justice Department is using the one major exception to privilege, when the communication is intended to further a criminal or fraudulent act, to compel lawyer Corcoran to testify against his own client. In other words, Justice asserts Trump lied to Corcoran about having no more classified documents, and that this constituted a crime of fraud and maybe obstruction, and thus privilege is not available and Trump’s lawyer can be made to testify against his client. The crime or fraud exception to attorney-client privilege itself has a long history, dating back to English common law. In the United States, the crime or fraud exception was first recognized by the Supreme Court in the 1840 case of United States v. Privileged Communications. This exception was later reaffirmed in other landmark cases, such as Clark v. United States (1933) and United States v. Zolin (1989).
There is some risk to the DOJ case if Corcoran is forced to testify while any further appeals are ongoing, as Trump has suggested he will seek a Supreme Court hearing of the matter. That opens the possibility if the Supreme Court ultimately rules the government’s arguments about the crime-fraud exception are wrong, prosecutors would be barred from using the information Corcoran provided as evidence to seek a grand jury indictment. That could serve as a basis for overturning the indictment, and make a clear case that Trump’s rights had been stomped on.
“Prosecutors only attack lawyers when they have no case whatsoever,” according to the Trump campaign. That said, DOJ seems to have little to worry about. Trump has an uphill battle. One of the precedent cases, Clark v. United States, involved a criminal defendant, Samuel Insull, who was accused of mail fraud and other crimes related to his business activities. Insull had consulted with his attorney, Frank Clark, and had given him documents and information related to his shady business dealings. During Insull’s trial, the government sought to introduce evidence that Insull had given false information to Clark, and argued that the attorney-client privilege did not apply because the communications were made in furtherance of a crime. The trial judge allowed the evidence to be admitted, and Insull was ultimately convicted.
As a final act, for now, Trump’s objections and request for a stay in proceedings were overruled by the Appeals Court of the District of Columbia. DOJ Special Counsel Jack Smith will obtain key documents from the lawyer for the former president related to the handling of sensitive national security records discovered at Trump’s Florida home last year; it is unknown if Corcoran will also be required to testify further before the grand jury. Trump’s only hope now is to have Corcoran hand over the documents and testify, then seek a hearing before the Supreme Court, and see through that the testimony rescinded and the government’s case fall apart.
If Trump lied to his own attorneys it is unclear that constituted a prosecutable crime. He has certainly not been charged with that. Things are further complicated by the fact that Trump has not been indicted or charged yet with any crime at all in connection with the documents. It’s a chilling development; attorney-client privilege had to yield to a fishing expedition via Corcoran’s testimony and records, evidence that the attorney may have been used to advance a crime. This can have significant legal consequences, as it allows the other party to use the previously confidential information against the client in court. See if you feel that’s what is intended by what we are increasingly call in quotation marks, “the rule of law.”
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Classified for You, Not Me
Without double-standards would we have any standards for classified information left at all?
President Biden said Tuesday he was “surprised” to learn in November his lawyers found classified documents in his former office at a Washington think tank. Biden’s lawyers discovered a cache of classified documents as they packed up his former office at the Penn Biden Center for Diplomacy and Global Engagement. The tone of the MSM seems to be boys will be boys, and since Biden is being so cooperative with classification authorities after being caught red-handed and after being allowed to hide the story until post-midterms, maybe this has nothing in common with Trump’s cache of classified documents at Mar-a-Lago. Or Hillary’s cache on her private e-mail server. Could there be a double-standard?
Biden had some/several/a bunch of classified documents while Trump had thousands so that’s different. Yes, on Sesame Street four is bigger than three, but with classified documents it is not a meaningful difference. The law is clear each document is a violation, and there are no discounts for having under a certain number. One classified document is enough to seek indictment. But let’s not forget about Hillary, who was allowed not only to carry over 33,000 subpoenaed documents in the form of emails out of secure spaces on her server, but to delete them. Imagine if Biden reported he and his team simply deleted whatever they had found, never mind if Trump had had a bonfire.
Biden’s documents were safe inside a locked closet. Classification law is extremely clear how documents must be stored, specifying for example, how many minutes a safe is expected to withstand against an attempt to cut it open. In the case of the Secure Compartmentalized Information (SCI) level docs Biden, Trump, and Hillary held, details are written into law and regulation as to what type of room, with what type of door, they are to be stored in. “Closet” does not find the definition whether it is at Biden’s place, Mar-a-Lago or Hillary’s home housing her email server.
Nobody saw the documents. Maybe it wasn’t to standard, but they were kept under lock and key. No blood, no foul. Sez who? The reason all those laws and regs regarding classified exist are to safeguard the documents absolutely, so instead of arguing whether the cleaning crew would have had access to them or not, one can say “U.S. Marines guard these documents in the equivalent of a bank vault deep inside the White House 24/7, that’s who sez so. With Hillary, the question of illicit access begs for a starting point, because the end point, an unclassified, insecure out-of-the-box email server connected to the internet itself meant any hacker with moderate skills, including those assigned to attack her official trips to China and Russia, presumably had full access.
Biden’s documents were just old briefing notes, nothing so important. If the documents were labeled Top Secret or SCI when created then that was their classification, no matter what we think of the contents today. The law is clear arguing the level of classification after getting caught is not a viable strategy, and retroactive classification is not an option. “The documents were not important even though they were classified” is simply not a defense after getting caught. It sounds a lot like the infamous “nuclear weapons” docs Trump had were briefing documents as well. News reports state the nuclear documents dealt with the capabilities of one specific country, and thus were likely part of Biden’s broader briefing package ahead of meeting that nation’s leader, or ahead of weighing in on what U.S. opinion might be on an issue concerning nuclear weapons proliferation.
Biden cooperated with the Justice Department and National Archives and Trump Didn’t. It is almost always taken into account at sentencing whether the perp cooperated with law enforcement, and sometimes a reduced sentence is in order. But there is nothing in the law (any law) which says if you cooperate after getting caught whatever you did was not a crime. And again look at Hillary — her response to accusations was to electronically shred (Bleachbit) all the documents in her possession and then destroy the hardware they had been stored on. And no brownie points to a MSM who seem to be trying to present Biden’s cooperation as sign of responsibility — after the fact, of course.
Maybe some of the documents were not clearly marked classified. This one is included for historical purposes because Hillary made such a claim; Biden and Trump have not. Documents are given a classification based on their content and the sources of that content. The marking itself (e.g., Secret) just sums up what there is to say about the content itself. If you remove the Secret moniker by retyping things (as appears the case with Hillary) or just tearing off that part of the document, it does not change the classification.
A matter of trust. Apparently the Justice Department is just going to take Biden’s word that all is well, and all the classified has been found. Something along the same lines with Hillary. Trump of course saw his own home raided by the FBI, armed with automatic weapons, in a frantic search for more evidence, and the alleged documents splayed on the floor and photographed like TV drama crime scene evidence. In the Biden and Hillary cases, it appears the lust for evidence is not quite as strong. We’ll note the Biden documents were found the day before the midterm elections, when the story would have been political dynamite, and held until two months later when they were presented as a nothing burger. Why did the Biden Justice Department hold the news so long? Why did they wait until Republicans announced a possible Church-style investigation to show how cleanish everyone’s hands are, cooperating and all?
Fun Fact. Presidents are allowed to declassify any document while in office, and Trump has issued a disputed claim that before leaving office he declassified all the documents the FBI found when it searched Mar-a-Lago in August. The same privilege of broad declassification does not apply universally to Vice Presidents (Biden’s classified documents are from his time as VP) or Secretaries of State.
The next move lies with Attorney General Merrick Garland, who will decide what if anything is to be done about Joe Biden improperly storing highly classified documents at a think tank while holding no public office. Garland’s predecessor filed no charges against Hillary. Garland himself appointed a Special Prosecutor for the Trump case. Arguments the Biden and Trump cases are different ignore that those differences seem to have no meaning in the law itself and are superficial, appearing to be a big deal to those uninformed as to how classification works, a false unequivalency. Transparency? Timeliness? Garland seems oblivious to the concerns of the newly-elected Republican Congress that a full-on witch hunt is in play to defeat Candidate Trump prior to any election, using the criminal justice system to defeat Trump when the electoral system will not.
Given the real, lawfully meaningful similarity among the three cases, where will the standards of justice fall this time? As a nation of laws, need we test so often who is above the law? The point is that if the FBI is going to take a similar fact sets and ignore one while aggressively pursuing another, it is partial and political. Any further action against Trump must address why Hillary was not searched and prosecuted herself, and if so, why not Biden as well. Fair is fair, after all.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Exposure: Why Mishandling Classified Material Matters
Hillary versus Trump versus Biden. All three kept classified information at their homes. Who wins the battle to have likely done the most damage to national security?
In the end when dealing with the damage done by mishandling classified information it comes down to exposure; who saw it, what was it, when was it seen, and for how long?
The “who” part is clear enough; a document left inadvertently on a desk top in an embassy guarded by Marines might not be seen by anyone. A document left on a park bench and seized by the local police risks direct exposure to the host country intelligence services if not sale to the highest bidder depending on the locale. But never underestimate cleaning staff; spies love ’em. In what other capacity are likely locals allowed to rummage through an embassy at night, picking through the trash, and moving things around on desks to um, dust?
The “what” and how much of it is the real stuff of James Bond. At times “what” is in the eye of the beholder. The Secretary of State’s daily list of telephone calls to make is always highly classified. It might matter very little to a Russian spy that the Secretary is calling the leader of Cyprus on Wednesday but matter an awful lot to the leader of nearby Greece. That is why intelligence services often horsetrade, buying and selling info they pick up along the way about other countries for info they need about theirs.
The “when” aspect is also important as many documents are correctly classified at one point in their history but lose value over time. One classic example is a convoy notification; it matters a lot who knows tomorrow at midnight the convoy will set forth. It matters a whole lot less a month later after everybody in town saw the convoy arrive. “How Long” can matter as well, as the longer a document is exposed the more chances someone unauthorized has to see it.
So those are the ground rules, on to Hillary versus Trump versus Biden!
“Who” between Trump and Biden seems a toss-up, given that as far as we know both kept classified in locked closets (we’ll turn to Hillary and her server below.) An investigator would want to know who had keys to that lock, and if possible, who used them when. What controls if any were in place to prevent duplicates from being made? What kind of lock was used? Was it pickable? Would cleaning staff or painters called in have had time alone to work the lock? Were there any video or access logs that might show the staff spent an inordinate amount of time near the closets? We know nothing about this regarding Trump’s and Biden’s closets. One might also want to get into who packed the boxes containing classified info, on whose orders, and how much exposure did they get en route to those naughty closets. Did the information sit in an unguarded truck stop overnight in 2010? Who would have known? “Who” is more than a name, it is a line of dominoes.
We have a starting on “what” material may have been compromised, and it is not good. Hillary, Trump, and Biden mis-stored information at at least the SCI level (Sensitive Compartmentalized Information, above Top Secret.) SCI means not only is the document classified, even seeing it is restricted to a specific list of people such that merely holding a full Top Secret clearance is not enough. We can say the documents included some real secrets as of their drafting.
Next of concern is the raw number of documents potentially exposed. In Trump’s case we have a decent tally, thanks to the Department of Justice. The initial batch of documents retrieved by the National Archives from Trump in January included more than 150 classified. With the raid, the government recovered over 300 classified documents from Trump. This worked out to over 700 pages of classified material and “special access program materials,” especially clandestine stuff that might include info on the source itself, the gold star of intelligence gathering. If you learn who the spy is inside your own organization you can shoot him, arrest him, find other spies in his ring, or turn him into a double agent to feed bogus information back to your adversary.
Our contest is a bit unfair to Trump, as inventories of what was found at Mar-a-Lago are online for all to see while the Biden media has been very cagey on how many document have been found, using phrases like “several” and “a few dozen.” We’ll have to wait until Biden’s home is raided or the Special Counsel concludes his investigation to know for sure.
In Hillary’s case just coming to a raw number is very hard, as she destroyed her server before it could be placed into evidence. Because her stash was email the secret files were also not all in their original paper cover folders boldly marked Top Secret with bright yellow borders, as in Trump’s case. Hillary also stripped the classification markings off many documents in the process of transferring them from the State Department’s classified network to her own homebrew server setup.
Nonetheless, according to the FBI, from the group of 30,000 e-mails returned to the State Department, 110 contained classified information at the time they were sent or received. Eight of those chains contained information Top Secret at the time they were sent, with some labeled as “special access program materials.” Some 36 chains contained Secret information at the time; and eight contained Confidential information. Separate from those, about 2,000 additional e-mails were “up-classified” to make them Confidential; the information in those had not been classified at the time the messages were sent, suggesting they were drafts in progress, in the process of being edited before a classification was ultimately assigned.
The “what” is a toss-up for now. Little information exists on specifically what each document trove held, though the WaPo claims one of Trump’s docs detailed a foreign country’s nuclear capability (ironically, the leak from DOJ revealing the document’s contents suggests things were more secure at Mar-a-Lago than after the search) giving him a slight lead in this category. Clinton discussed Top Secret CIA drone info and approved drone strikes via Blackberry.
We do have a winner in the “when” category, albeit via an odd path. Biden’s classified materials date back to his Vice Presidency, and we don’t know when they were moved out of secure storage, so the material goes possibly back to 2009. That’s potentially 14 years of the paper hanging around waiting for someone to discover and make nefarious use of it. In Trump’s case, he left the White House in January 2021 and the classified was pulled out of Mar-a-Lago no later than August 2022, only some 20 months of hiding for no more than four years of material.
Investigations are ongoing in both cases but there is no evidence to date that anyone unauthorized saw the classified documents. We know that after classified was id’ed inside Mar-a-Lago by the National Archives, DOJ asked Trump to provide a better lock, which he did, and later to turn over surveillance tapes of the storage room, which he did. But the clearest evidence of non-exposure is the lack of urgency on the part of all concerned to bust up Trump’s place. Claims he retained classified documents from the White House began circulating even as he moved out in January 2021. The first public evidence of classified in Mar-a-Lago waited until January 2022 when the initial docs were seized, and the recent search warrant tailed that by eight months. If the FBI thought classified material was in imminent danger from one of America’s adversaries they might have acted with a bit more alacrity.
The real money-maker in the classified world is exposure, and here we finally have a clear leader. Hillary wins in that her exposure of classified emails was done consistently over a period of years in real-time. Her server was connected to the internet, meaning for a moderately clever adversary there was literally a wire between her computer with its classified information and the Kremlin. 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 may have been “compromised by unauthorized individuals, to include foreign governments or intelligence services, via cyber intrusion or other means.” How could anyone have gained access to the credentials? Clinton’s security certificate was issued by GoDaddy.
We have a winner. Whether anyone unauthorized got a look at Trump’s or Biden’s stash remains unclear, but we know for near-certain Hillary’s was compromised. And by compromised we mean every email the Secretary of State sent wide open and read, an intelligence officer’s dream. Hillary had no physical security on her server, her server was enabled for logging in via web browser, smartphone, Blackberry, and tablet, and she communicated with it on 19 trips abroad including to Russia and China. It would have taken the Russians zero seconds to see she was using an unclassified server, and half a tick or two to hack (hostile actors gained access to the private commercial email accounts of people with whom Secretary Clinton was in regular contact) into it. Extremely valuable to the adversary were the drafts, documents in progress, a literal chance to look over Clinton’s shoulder as she made policy concerning their country.
No search warrant was exercised to seize the server and Hillary’s word was taken when she said there was no chance of compromise. So enjoy the bread and circuses around two old men with irresponsible staffs and or irresponsible ambitions who got caught with classified information improperly stored. The real damage had already been done years earlier by Hillary, who escaped any penalty, not even the embarrassment of a Special Prosecutor.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Klassified Kapers: Hillary v. Trump
Hillary versus Trump in their Klassified Kapers. Both kept classified information at their homes, both appeared to break the law, only one may be legally punished. But which one wins the battle to have done more damage to national security than your average enemy spy?
In the end when dealing with the damage done by mishandling classified information it comes down to exposure; who saw it, what was it, and when was it seen?
The “who” part is clear enough; a document left inadvertently on a desk top in an embassy guarded by Marines might be seen by locally hired cleaning staff at worst. A document left on a park bench and seized by the local police risks direct exposure to the host country intelligence services if not sale to the highest bidder depending on the locale.
The “what” is the real stuff of James Bond and even actual spies. A lot of things are classified, many perhaps overclassified. The Director of the National Security Archive at George Washington University estimates 70 percent of the documents he sees are overclassified. Donald Rumsfeld put it at 50 percent. Just because something is marked Top Secret does not mean the information there really is, but it still might rightly qualify as classified at the Confidential level. It would take a knowledgeable person looking at documents one-by-one to conclude which of the 7 out of 10 were overclassified.
Other times “what” is classified is in the eye of the beholder. The Secretary of State’s daily list of telephone calls to make is always highly classified. It might matter very little to a Russian spy that the Secretary is calling the leader of Cyprus on Wednesday but matter an awful lot to the leader of nearby Greece. That is why intelligence services often horsetrade, buying and selling info they pick up along the way about other countries for info they need about theirs. One of the most deeply-run intel operations against the State Department involved a Euro-ally looking for info on a competitor by listening in to third party U.S. diplomatic sites where the data was treated almost as spam.
The “when” aspect is also important as many documents are correctly classified at one point in their history but lose value over time. One classic example is a convoy notification; it matters a lot who knows tomorrow at midnight the convoy will set forth from A to B. It matters a whole lot less a month later after the whole affair has come and gone and everybody in town saw the convoy arrive.
Lastly, we have the unknown factor in judging our contest. Few countries actively harvesting intelligence are in the mood to tell anyone about it. In fact, just the opposite. Even when caught spies deny everything such that one of counter-intelligence’s main tasks after a bad guy is caught is to try and figure out what he likely gained access to, which documents or information he got. Note the “or” there because it is always information, data, which is classified, not pieces of paper. Much damage can be done with a diplomat’s hand written notes of a meeting, unmarked by a classification such as Secret, compared to a document marked Secret but containing nothing really worth keeping quiet. The marking on a document is only the drafter’s best estimate of what the information on paper really is worth. This all makes it hard to judge the relative impact of one exposure to another, but there are other ways.
So those are the ground rules, on to Hillary versus Trump!
We start the contest with raw number of documents potentially exposed. In Trump’s case we have a decent tally, thanks to the Department of Justice. The initial batch of documents retrieved by the National Archives from Trump in January included more than 150 marked as classified. With the recent search raid, more were found such that the government recovered over 300 documents with classified markings from Trump since he left office. This worked out to over 700 pages of classified material and “special access program materials,” especially clandestine stuff that might include info on the source itself, the gold star of intelligence gathering. If you learn who the spy is inside your own organization you can shoot him, arrest him, find other spies in his ring, or turn him into a double agent to feed bogus information back to your adversary. To be fair, our contest is a bit unfair to Trump, as inventories of what was found at Mar-a-Lago are online for all to see.
In Hillary’s case just coming to a raw number is very hard, as she destroyed her server before it could be placed into evidence and completely deleted (bleached) many, many emails. Because her stash was email the secret files were also not all in their original paper cover folders boldly marked Top Secret with bright yellow borders, as in Trump’s case. Hillary also stripped the classification markings off many documents in the process of transferring them from the State Department’s classified network to her own homebrew server setup. More on that later.
Nonetheless, according to the FBI, from the group of 30,000 e-mails returned to the State Department, 110 were determined by the owning agency to contain classified information at the time they were sent or received. Eight of those chains contained information Top Secret at the time they were sent, with some labeled as “special access program materials.” Some 36 chains contained Secret information at the time; and eight contained Confidential information. Separate from those, about 2,000 additional e-mails were “up-classified” to make them Confidential; the information in those had not been classified at the time the messages were sent, suggesting they were drafts in progress, in the process of being edited before a classification was ultimately assigned.
So in simple terms based on the albeit thin information available publicly, Trump wins the category for having the most raw material, classified documents, outside an officially secured facility.
In this race, the “what” is a toss-up. Little information exists on specifically what each document trove held, though the WaPo claims one of Trump’s docs detailed a foreign country’s nuclear capability (ironically, the leak from DOJ revealing the document’s contents suggests things were more secure at Mar-a-Lago than after the search) giving him a slight lead in this category. Clinton only discussed Top Secret CIA drone info and approved drone strikes via Blackberry.
But the real money-maker in the classified world is exposure, and here we finally have a clear leader. For all the noise around Mar-a-Lago, there is nothing to suggest the classified Trump held was ever exposed; in fact, information available suggests the stuff left the White House to remain boxed up inside a storage room. We know that after classified was id’ed inside Mar-a-Lago by the National Archives, DOJ asked Trump to provide a better lock, which he did, and later to turn over surveillance tapes of the storage room, which he did. But the clearest evidence of non-exposure is the lack of urgency on the part of all concerned to bust up Trump’s Klassified Kaper. Claims he removed classified documents from the White House began circulating even as he moved out in January 2021. The first public evidence of classified in Mar-a-Lago waited until January 2022 when the initial docs were seized, and the recent search warrant tailed that by months. It suggests if the FBI thought classified material was in imminent danger of being exposed to one of America’s adversaries they might have acted with a bit more alacrity.
Not so with Hillary. Her server was connected to the internet, meaning for a moderately clever adversary there was literally a wire between her computer with its classified information and the Kremlin. As the actual Secretary of State Hillary Clinton 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 may have been “compromised by unauthorized individuals, to include foreign governments or intelligence services, via cyber intrusion or other means.” How could anyone have gained access to the credentials? Um, Clinton’s digital security certificate was issued by consumer-level GoDaddy.
The last bit seals it: we have a winner. Whether anyone unauthorized got a look at Trump’s stash remains unclear, but we know for near-certain Hillary’s was compromised. And by compromised we mean every email the Secretary of State sent wide open and read, an intelligence officer’s dream. Hillary had no full-time physical security on her server, her server was enabled for logging in via web browser, smartphone, Blackberry, and tablet, and she communicated with it on 19 trips abroad including to Russia and China. It would have taken the Russians zero seconds to see she was using an unclassified server, and half a tick or two to hack (hostile actors gained access to the private commercial email accounts of people with whom Secretary Clinton was in regular contact) into it. Extremely valuable to the adversary were the drafts, documents in progress, a literal chance to look over Clinton’s shoulder as she made policy.
Unknown is the actual process Hillary used to move classified material to and from her server from the main State Department and other systems. If she transferred data the most likely and convenient way, via floppy disk or USB drive, then she likely compromised the State Department systems as well. Her SysAdm for the home server was a State Department Civil Service employee she hired and so suggests a link between State computer hardware and the Secretary’s own. We’ll never know, as no search warrant was exercised to seize the server and Hillary’s word was taken when she said there was no chance of compromise. All we can say is some intelligence officer in Moscow or Beijing was probably promoted to Colonel off this one.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Prosecuting Trump
What would you do if you were Merrick Garland? Would you prosecute Trump? Or would you walk away, concerned about accusations you and the FBI were playing politics?
Step One appears easy, put off any decision until after the midterms. Trump is not a candidate, key issues driving the midterms (inflation, Ukraine, Roe) are not his issues and though Trump is actively stumping for many candidates, initiating any prosecution before the midterms is just too obvious. Nothing else about Mar-a-Lago has had an urgency to it (months passed from the initial voluntary turnover of documents and the forced search) and announcing an indictment now would be a terrible opening move. So if you’re Garland, you have some time.
On the other hand waiting until after the midterms can be dangerous if as expected the Republicans do well and take both the House and the Senate. Even with slim majorities Republicans are expected to initiate their own hearings, into Hunter Biden’s laptop and how the FBI played politics with that ahead of the 2020 election. Holding off an indictment until that is underway risks making your case look like retaliation for their case. That’s a bad look for a Department of Justice which claims it is not playing politics. It would look even worse if the Republicans try and cut you off, opening some sort of hearings into the Mar-a-Lago search prior to an indictment. Nope, if you’re Merrick Garland you are caught between a rock and a hard place.
But there is a bigger question: if you are Garland and you indict Trump, can you win? Candidate Trump is already earning a lot of partisan points claiming he is the victim of banana republic politics, and his indictment ahead of 2024 (it matters zero if he has formally announced or not, he is running of course) will allow him to claim he was right all along. An indictment will allow Trump to fire both barrels, one aimed at Garland and the other at the FBI and these, coupled with the dirty tricks a Republican investigation into the FBI and Russiagate will expose will make Trump look very right. He was the victim of partisan use of justice, and the FBI did try to influence both the 2016 election (with Russiagate) and the 2020 (by deep-sixing Hunter Biden’s laptop claiming falsely it was Russian misinformation) and now is taking a swing at 2024 with the Mar-a-Lago documents. If public opinion moves further to Trump’s side, Merrick Garland through his indictment just reelected Trump to the White House as a sympathy candidate. The spooks call that blowback, and it is a real threat in this instance.
Any action against Trump must 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. Garland will have to address the most obvious precedent case involving former Secretary of State Hillary Clinton, who maintained an unsecured private email server which processed classified material. Her server held e-mail chains classified at the Top Secret/Special Access Program level which included the names of CIA and NSA employees. The FBI found classified intelligence improperly stored 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. 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, and after all nobody is above the law.
The other fear holding Garland back would be that of losing the case outright in court. Classified documents are typically dealt with either via administrative penalties (an officer is sent home for a few days without pay) or as part of some much larger espionage case where the documents were removed illegally as part of the subject spying for a foreign country. Rarely is a case brought all the way to court for simple possession. Most of the laws Trump may have broken require some sort of intent to harm the United States. In other words, Trump would have had to have taken the documents not just for ego or his library or as some uber-souveniers but with the specific intent to commit harm against the United States. Garland certainly does not have that.
Other factors which typically play into documents cases are also not in Garland’s favor. Despite not being kept in line with General Services Administration standards, the documents appear to have been locked away securely at Mar-a-Lago, the premises itself guarded by the Secret Service. Trump has already turned over surveillance video of the documents storage location, which presumably does not show foreign agents wandering in and out of frame. It is much harder to prosecute a case when no actual harm was shown done to national security.
Another factor in documents cases involves the content of the documents themselves. The uninformed press has made much of the classification markings, but Garland will need to show the actual content of the docs was damaging to the U.S., and that Trump knew that. Overclassification will play a role, as will the age and importance of the information itself; after all, it is that information which is classified, not the piece of paper itself marked Secret. Garland will know Trump will fight him page by page, meaning much of the classified will be exposed in court and/or the trial will move to classified sessions to shield the information but feed the conspiracy machine. One can hear Trump arguing his right to a public trial being taken away.
Hyperbole aside, the critical question returns to whether or not prosecutors could prove specific intent on Trump’s part for the more serious charges. Proving a state of guilty mind — mens rea — would be the crux of any actual prosecution based on the Mar-a-Lago documents. What was Trump thinking at the time, in other words, did he have specific intent to injure the United States or to obstruct some investigation he would have had to have known about? Without knowing the exact nature of the documents this is a tough prediction but even with the documents on display in front of us proving to a court’s satisfaction what Trump wanted to do by keeping the documents would require coworkers and colleagues to testify to what Trump himself had said at the time, and that is unlikely to happen. It is thus unlikely based on what we know at present that Trump would go to jail for any of this.
Take for example the charges of tax evasion now levied again the Trump Organization (i.e., not Trump personally and not part of the Mar-a-Lago case.) Trump Organization CFO Allen Weisselberg, as part of a plea deal, will testify against the Organization but not Trump himself as to why the Organization paid certain compensation in the form of things like school tuitions, cars, and the like, all outside the tax system. It will be a bad day for the Organization but loyal to the end, Weisselberg will not testify as to his boss’ mens rea. It is equally unclear who would be both competent and willing to do so against President of the United States Trump. Blue Check enthusiasm aside, he won’t go to jail over this.
The final questions are probably the most important: DOJ knows what the law says. If knowing the chances of a serious conviction are slight, why would the Justice Department take the Mar-a-Lago case to court? Then again, if knowing the chances for a serious conviction are slight, why would the FBI execute a high-profile search warrant in the first place? To gather evidence unlikely ever to be used? No one is above the law, but that includes politics not trumping clean jurisprudence as well.
And then what? If Garland successfully navigates the politics, if he proves his case in court, and if he secures some sort of conviction against Trump which withstands the inevitable appeal, then what? Trump’s Mar-a-Lago “crimes” are relatively minor. Could Garland call Trump having to do some sort of community service during the 2024 campaign a win? Pay a fine? It seems petty. It sure seems Trump wins politically big-picture whether he wins or loses at Mar-a-Lago. If you were Merrick Garland, what would you do?
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
What Three Things Matter Most in the Trump Mar-a-Lago Case? Intent, Intent, Intent
The three things which matter most in the Trump Mar-a-Lago case are intent, intent, and intent. Trump’s intent — not so much what he did with classified and/or national security documents but what he intended to happen based on his actions — will decide his innocence or guilt if the case ever comes to court. The documents themselves matter much less, and are almost a red herring.
Wholly separate from January 6 and any other legal action against Trump, the Mar-a-Lago search warrant specifies three sections of law as justification, meaning any prosecution that comes out of the documents found in the search will likely be under one or more of these, a roadmap to the possible prosecution. On the face it seems Trump is pretty close to guilty, assuming at least some of the documents found were marked as classified and his arguments that as president he declassified them are not accepted. You can see an example of the hathotic glee over this here.
But there is one more step, often overlooked in Twitteranalysis, to prove, and that is intent. The concept of intent is planted throughout American law and says in many cases (to include incitement, most tax evasion, and sedition) that you not only need to have committed some act like stirring up a crowd to violence, you had to have done it with a specific goal in mind, such as stirring them up to violence. It is intent which separates the what from the why. It’s the difference between a mistake, error, misstatement, and an actual crime. The action itself is often easy to prove, while the thought pattern, what was in someone’s head, the mental objective behind an action, much less so. Based on the laws cited on the search warrant, it is what matters most in Mar-a-Lago.
The three laws mentioned in the Mar-a-Lago search warrant all specifically require proving intent — Trump’s mental objective in taking the classified document — or its equivalent:
— 18 U.S.C. §§ 793, “Gathering, transmitting or losing defense information” says (emphasis added) “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…” Intent is mentioned repeatedly throughout the law, sometimes restated as purpose, reason, and the like. 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.
— 18 U.S.C. §§ 2071, “Concealment, removal, or mutilation generally of an record…” says that the act must be (emphasis added) “willful and unlawful,” a standard likely of general intent. This statute also states anyone who violates it should be disqualified from holding public office, but while the issue would likely get litigated in court, legal scholars broadly believe it couldn’t be used to stop Trump from running for president again in 2024. Only Article II of the Constitution can prescribe the requirements to run for president.
— 18 U.S.C. §§ 1519, The “anti-shredding provision” 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.”
Intent as we’re (and Trump) is concerned about almost always means specific intent, as opposed to general intent. General intent means the prosecution must prove only that the accused meant to do an act prohibited by law. Whether the defendant intended the act’s result is irrelevant. Specific intent means the accused intentionally committed an act and intended to cause a particular result, a wrongful purpose, when committing that act (U.S. v. Blair.) Merely knowing a result is likely isn’t the same as specifically intending to bring it about. (Thornton v. State.) Note that none of the laws mentioned as possible violations require the documents in question to be classified, though it would be hard to imagine prosecutors could prove something not classified could rise to the level of “injuring the United States.”
In Trump’s case, based on what we know publicly, intent might play out as follows. On the first charge, the Espionage Act, prosecutors would need to show he kept classified and/or other national security information at Mar-a-Lago with the intent to cause injury to the United States. Similar for the third charge, where prosecutors would need to show he kept classified information and/or other national security info at Mar-a-Lago with the intent to impede or obstruct an investigation. The second charge seems more geared toward general intent, that Trump kept classified and/or other national security info at Mar-a-Lago knowing it was wrong without prescribing an outcome (actus reus), such as injury to the U.S. or obstructing an investigation. All easy to say, but hard to prove in court.
Much of this is over-looked by the Twitteranalysists, who are like Southern Baptists and Satan, assuming the worst always about Trump’s intent to the point where they need not comment. For example, one Blue Check wrote “Will Donald Trump finally face something approximating justice for his five decades or more of apparent and aggressive lawlessness, culminating in a criminal presidency and an attempted coup, with the possibility of treason and criminal espionage? Will the American people finally be rid of this meddlesome would be tyrant-king with millions of followers, leader of a neofascist movement that is literally threatening to uproot and destroy American democracy?”
Hyperbole aside, the critical question returns to whether or not prosecutors could prove specific intent on Trump’s part for the more serious charges, one and three above. Proving a state of guilty mind — mens rea — would be the crux of any actual prosecution based on the Mar-a-Lago documents. What was Trump thinking at the time, in other words, did he have specific intent to injure the United States (charge one) or to obstruct some investigation (charge three)? Without knowing the exact nature of the documents this is a tough task but even with the documents on display in front of us proving to a court’s satisfaction what Trump wanted to do by keeping the documents would require coworkers and colleagues to testify to what Trump himself had said at the time, and that is unlikely to happen. It is thus unlikely based on what we know at present that Trump would go to jail for any of this.
Take for example the charges of tax evasion now levied again the Trump Organization (i.e., not Trump personally and not part of the Mar-a-Lago case.) Trump Organization CFO Allen Weisselberg as part of a plea deal will agree to testify against the Organization but not Trump himself as to why the Organization paid certain compensation in the form of things like school tuitions, cars, and the like, all outside the tax system. It will be a bad day for the Organization but loyal to the end, Weisselberg will not testify as to his boss’ mens rea. It is equally unclear who would be both competent and willing to do so against President of the United States Trump. Blue Check enthusiasm aside, he won’t go to jail over this.
The final questions are probably the most important: DOJ knows what the law says. If knowing the chances of a serious conviction are slight, why would the Justice Department take the Mar-a-Lago case to court? If knowing the chances for a serious conviction are slight, why would the FBI execute a high-profile search warrant in the first place? To gather evidence unlikely ever to be used? No one is above the law, but that includes politics not trumping clean jurisprudence as well. The justice system cannot replace the electoral system in choosing the next president.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Five Stages of Mar-a-Lago Grief
Another week, another silver bullet missing Donald Trump. The endless roll of waves of crimes, accusations, near-indictments, and just bad words slandered away which we had all endured for the past four years happened again. We went from Trump has classified material under lock and key at Mar-a-Lago to a group of people paying $1800 to fly a banner reading “ha ha ha ha” over the resort to mock a Trump staying 3000 miles away in New York. On cue the regulars on MSNBC and CNN brought out their running dog former CIA and FBI officers to tell us tick tock, the walls are closing in, this time it will stick, Trump is going down, he’ll be in jail before he runs again for office. If we can’t stop him with the electoral system we’ll use the judicial system. This. Is. The. One.
Except it isn’t. The offense itself — some variant of mishandling of official materials — is muddled from the git-go by the former president’s former ability to declassify anything, a power he claimed he already used before he left the White House to magically spay the documents. An Espionage Act prosecution is a non-starter, requiring as it does the showing of intent to harm the United States. It seems the documents, however classified and/or sensitive they are, were securely stored at Mar-a-Lago and the risk of exposure was very minimal. The FBI nonetheless threw the kitchen sink at Benedict Donald with a full-on raid, to enforce the Presidential Records Act, a law that actually has no prescribed penalty associated with it. Given the presumed age of some of the documents and non-impact, it was sort of like not returning a semi-important library book.
The story will drag on a while, buoyed by leaks supposedly telling us politically salacious details about the secret documents (the single handwritten doc stored by Trump will likely take on lore akin to the grassy knoll for Trump conspiracists) but in reality “Mar-a-Lago-gate” is fast on its way to closing, joining Russiagate, Ukrainegate, Stormygate, January6gate, and all the others off to the side of history. It is close enough to being a dead story that it’s worth helping our progressive friends through the five stages of grief — Denial, Anger, Bargaining, Depression, Acceptance — that accompany something once so important passing. RIP.
Denial: Are we really doing this all again? There is no way tRump is not guilty of something. There is no way way the Orange Man can finish his term without jail time. Mueller laid out a roadmap to post-term prosecution. Wait until we see his taxes. January 6 had to have been sedition or treason or truancy. It could not have been sort of a violent but potently nothing, amiright? OK, fine, now that he is no longer protected as president and is a regular citizen again the gloves are off and he is going to jail. There is no way Trump is going to run again unless he campaigns from prison. You gonna ignore (checks notes for name) Cassidy Hutchison? Whatta you mean Georgia still hasn’t filed an indictment for election fraud, it’s been how many years? Wasn’t his grabbing the wheel from the Secret Service driver on J6 enough? What about that we call it J6 now? We were so close with the Emoluments Clause, and then the DC hotel business. The walls have to be closing in. Dig up Ivana, her coffin is probably full of purloined documents! Repeat after me: “I know we’ve said it many times before, but this time…”
Anger: Mueller time should have worked but he wimped out! I paid $29.95 on eBay for a Mueller bobble head doll and you’re telling me the guy had nothing at all, not a pair of twos to play? Sanctimony (“Nobody is above the law, you know”) runs inverse to memory (“But her emails!”) in the poli-grieving process. If you’re gonna take a shot at the king you better not miss. And Garland has been putting in a lot of range time. I Googled “RICO” and per Wikipedia this has to work unless the DOJ is in on it, too.
Bargaining: So Dotard had top secret documents, probably was going to sell them to the Russkies, so he’s guilty under the Espionage Act which carries the maximum penalty of death, like the Rosenberg’s or someone else, this is it, the silver bullet! What the hell is wrong, there were hundreds of peeResident Brown Shirts at the Capitol, can’t you idiots get one of them to flip and accuse Trump? What about the Alfa Bank and the Yota smartphones, the hotel deal, what about the pee tape for gosh sakes! You made us believe there was a pee tape and this whole Trump thing was going to be over before it ever really began. Where is the pee tape, we were promised a pee tape. And a hero, we want a hero and all you gave us was Robert Mueller, Michael Avenatti, Michael Cohen, Adam Schiff, Dr. Fauci (optional), Liz Cheney, and now Merrick “Milquetoast” Garland. Somebody do something to fix all this and we promise never to use the expressions “Period. Full Stop. End of story” or “Let that sink in” or “I’ll just leave this here” or “methinks” again on Twitter.
Depression: Yea, that Joe Biden, what a guy, woo hoo. Yes, I guess we all lost our minds again, this time over what is probably “presidential memorabilia,” stuff that would have ended up anyway in Trump’s presidential library on “indefinite loan from the National Archives” if Trump had just gone through channels like Obama and Bush.
Acceptance: OK, well, Russiagate didn’t work. Trump doing something naughty with the Ukraine didn’t end in an impeachment conviction. Michael Avenatti is in jail. The deal with Stormy Daniels and the other Barbies might have been sleazy but it was not criminal. And his 700 sexual assaults! So, alright, nobody could make a indictment out of all that fuss over security clearances for Don and Eric. The Southern District of New York could not find something to charge Trumpkins with vis-vis property taxes or valuation stuff no one really understood, and the various walls never closed in. Maybe Trump will be forced to release his taxes if he runs again, there’s a bright side, gotta be something in those taxes, right? I mean, who takes the Fifth except guilty people, the Orange Man himself said that when he was talking about Hillary but it applies to him and the Trump crime family.
The family, that’s right, that’s his Achilles Heel! Ivanka had some sort of sweetheart deal with China or something even before Hunter Biden to trademark her fashion things, and Jared sold NYC property too cheaply, and Don Jr., had his hand in some golf course thing I think I remember, in Sweden or maybe Scotland. And didn’t Trump flush secret documents down the White House pooper, that was wrong, right? There is still time for Trump’s accountant to flip and tell us all, got to be some indictable stuff in those books, eh? Or maybe Michael Cohen, he has a another book coming out, that will likely cement his role as Fredo and send tRump to the slammer. I hope his cellmate is ironically named Tiny. And Merrick Garland is not really done with the documents, is he? I mean, he hasn’t indicted Trump for anything over them yet — yet — but it could be just nine dimensional chess with Garland waiting for the exact right moment to bring in something from the Articles of Confederation or the Stamp Act showing Trump is guilty. He’s gotta be guilty of something. Right? We still believe.
Maybe next time.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Classified Right Outta Mar-a-Lago
What is a classified document? Trump seems to have lots of them, and the FBI sure wants them back.
In the wake of my first book critical of the State Department’s Iraq Reconstruction program, Diplomatic Security began a deep dive into my life in an attempt to find something over which to prosecute me. A colleague inadvertently passed on a bit of personnel gossip via his official email to my Yahoo! account, and the chase was on.
Diplomatic Security claimed I was in possession of “classified” material at home and referred my case to the Justice Department. The email in question was simply labeled “For Official Use Only,” (FOUO) a standard tag then automatically applied to all email sent by State in the unclassified system (a wholly separate email system existed for true classified — Confidential, Secret, Top Secret — messages.) FOUO was a non-standard “classification” made up by State and was being used to pin me against the wall and force me to resign under threat of prosecution. Luckily someone familiar with classification law at the Department of Justice prevailed, and I was not charged. The so-called secret in the email, that a mutual friend thought someone’s boss was a jerk, stays safe with me to this day.
The classification system for national security documents, while designed to identify documents to protect from people without the proper clearances, including foreign intelligence officers, has been often misused over the decades. It is very easy to slap a classified label on a document — persons using the State Department’s classified email system must classify what they write as either Confidential, Secret or Top Secret. If the document does not fit those categories it does not belong on the “class system” to begin with, though this is often misused as well. State workers who use the class system almost exclusively for their work might pass on a lunch invitation via the same system to avoid jumping from computer to computer.
Many documents correctly classified on creation, such as a military convoy movement time, lose their secretness within a few hours after everyone sees the convoy rumbling down the road. The classified bit was knowing in advance the convoy would depart a certain place at a certain time and after that passed, meh. Lastly, documents are often over classified for ego purposes, the sender feeling more important if his pet project is labeled Secret as opposed to FOUO or simply left unclassified. That all said, some documents deserve their classification and more, particularly those which reveal sources and methods, say the name of our agent deep inside Putin’s inner circle. Stuff like that is rarely ever even put into writing; if the president wants to know he is usually orally briefed.
Classification can also be misused in other ways, say to “hide” a document from future Freedom of Information Act searches and delay its release. Important people like to think they do important things and rightly or wrongly most of what the president or the Secretary of State touches ends up classified at some level. Over classification thus plagues the government, slowing down the legitimate transfer of information.
Except for the president, once classified it is very hard to unclassify or downgrade a document not subject to automatic declassification. Anyone can create a classified document by slapping the word Secret on it, but very few people can later take that document and change it to unclassified. The assumption is the original classifier was correct. The biggest exception of them all is the president himself, who holds the authority to change or declassify documents. This is not done willy-nilly; there is a process to follow which leaves a decision trail and usually includes some sort of consultation with the organization (State, CIA, DOD) which originated the document. The president cannot wave his hand over a storage unit of banker’s boxes and declassify the lot. Also, the president can unilaterally authorize officials from a foreign government to receive classified national security information. It is a very broad mandate, stemming from the fact that the entire classification system is based on Executive Orders more than law. Of course there are also the questions of “legal” and “sensible” that apply to all presidential actions but the latter is up to the voters, not the FBI, to decide.
Classified documents are supposed to be stored in classified containers (safes) or spaces (up to bank-like vaults.) All these rules about classified documents are supposedly taught to you as part of being issued a security clearance, though in practice people like the president or SecState have staffers who take care of producing, storing, and disposing of classified. If a breach occurs, the first question is not nyah nyah nyah you got caught! but what level of document was exposed and how was it exposed. Did you inadvertently leave it out on your desk instead of putting it into a safe inside the guarded embassy during lunch, or did you intentionally publish it to your Instagram? Was it an out-of-date means-little document or a current list of human assets in Ukraine? How much damage was done and what was the intent? Because there’s classified, and then there’s classified, bubby. Those maximum penalties bandied about by the media would typically require a significant exposure with intent to do harm.
People inside government and the military commit security violations all the time, almost all minor and inadvertent. Punishments can be as mild as being told not to do it again, up to loss of pay and forced time off to actual loss of job and even prison. But you gotta work at it to go much further than your own boss and the security team.
We don’t know exactly what documents were found at Mar-a-Lago, and we don’t know what classification they individually held or how they were stored. We do know Trump as president had the authority to declassify any of them, something which will figure into any defense he has to make. We also know the type of document and what it contains matter a lot in any penalty which may follow the FBI raid. We also know what Trump did with the documents is critical. If they never left a dark, locked basement storage area at Mar-a-Lago and were likely not reviewed by anyone since leaving the White House, punishment will be unlikely unless politics interferes.
Since millions of government employees have at one point handled and mishandled classified, there is plenty of precedent out there on action and punishment. For example, one of the most well-known cases is Sandy Berger, former national security adviser to President Bill Clinton, who stole classified documents from a secure reading room at the National Archives. He pleaded guilty in 2005 to a misdemeanor charge of unauthorized removal and retention of classified material (via the Espionage Act, the same charge the media says Trump may face) and was sentenced to probation, community service, and a fine. General David Petraeus received only probation for intentionally sending highly classified military documents via commercial email to his lover/biographer.
Former Secretary of State Hillary Clinton 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.” Yet Clinton was not prosecuted nor penalized. Any prosecution of Trump would need to address that precedent.
All this needs to be kept in mind when evaluating the FBI raid at Mar-a-Lago. The FBI, its reputation already in tatters post-Russiagate, might also have kept it in mind before deciding to stage another likely losing full-on assault against Trump.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
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