How come DOJ can’t just file an appeal in the court of their choice like trump did? They’d probably get laughed out of court, but I’m still so pissed that I wish they could find some way to get a less-than-glacially-slow result. Just venting.
FBI Search and Seizure at Trump's Mar-A-Lago Residence, August 8, 2022, Case Dismissed July 15, 2024
Benedict Donald.
Cannon’s legal theory, as I understand it, is:
- Existing cases never dealt with a forever President, so saying that a special master has historically only counted when dealing with a lawyer’s office is irrelevant.
- An executive does have his own form of legal privilege that should be treated akin to attorney-client privilege.
- The Supreme Court has specifically said that executives have privilege over their documents and, while the current office holder has precedence over a previous president on the topic of executive privilege for certain documents, this claim is not absolute. The previous office holder can contest this in court and try to convince them that the current President has no justifiable and proper need for the materials - only salacious and politicized ones.
- And, given all this, the former President would need to be aware of what materials were under discussion. Otherwise, how is he supposed to contest them?
Personally, I don’t know that she’ll lose an appeal. Maybe the jurisdiction will be changed and some specifics, but the general framework is liable to continue in the other court.
This is entirely counter to the PRA. The documents don’t now and never did, belong to Trump. They belong to the US Government and should properly be housed in the Archives. He might, under some circumstances, have the ability to request limiting the release of some records, but he still doesn’t get to keep them, there’s literally no ambiguity there.
See here: 44 USC Ch. 22: PRESIDENTIAL RECORDS
§2202. Ownership of Presidential records
The United States shall reserve and retain complete ownership, possession, and control of Presidential records; and such records shall be administered in accordance with the provisions of this chapter.
§2203. Management and custody of Presidential records
(g)(1) Upon the conclusion of a President’s term of office, or if a President serves consecutive terms upon the conclusion of the last term, the Archivist of the United States shall assume responsibility for the custody, control, and preservation of, and access to, the Presidential records of that President. The Archivist shall have an affirmative duty to make such records available to the public as rapidly and completely as possible consistent with the provisions of this chapter.
(2) The Archivist shall deposit all such Presidential records in a Presidential archival depository or another archival facility operated by the United States. The Archivist is authorized to designate, after consultation with the former President, a director at each depository or facility, who shall be responsible for the care and preservation of such records.
Emphasis added.
Note the "shall"s. That’s not a choice or option and there’s no gray area.
Unfortunately, shall is probably the most litigated single word in US jurisprudence. Sometimes it means must, sometimes it means may, sometimes it means no more than should. That’s what happens when you have non-lawyers writing the laws that the courts have to interpret.
But, as far as I know, it’s relatively settled that when the word “shall” is used to order a competent party to perform an action within their control, it’s considered an imperative. The test I’ve seen is “can you substitute ‘has a duty to’ and have the statute still make sense. Thus:
" The United States has a duty to reserve and retain complete ownership, possession , and control of Presidential records…
…the Archivist of the United States has a duty to assume responsibility for the custody, control , and preservation of, and access to…
The Archivist has a duty to deposit all such…”
All of those work.
Let’s imagine that Congress passes a law that says “The Executive shall inform Congress of all of his intentions. Further, the Executive must wait to take any of said actions until Congress votes and consents.” And they call this the “Presidential Control Act” (PCA).
The Executive says that this is unreasonable, goes to the Supreme Court, and they say that they are fine with the first part but the second part goes against the Constitution, separation of powers, you have to color in your own lines, etc. They issue guidance that everyone should ignore the second part of the PCA.
From that moment forward, when the Executive decides to do things without Congress’s approval, it is unreasonable to bring up the PCA and say that he’s clearly breaking the law. Everyday law is subordinate to the Constitution and its interpretation by the Supreme Court, and does not supercede it.
So unless you want to argue that the Supreme Court was unaware of the PRA and did not consider the PRA in their case of considering whether a former Executive retains some arguable right to privacy over his administrations output, I don’t think that raising the PRA is relevant. (He can argue it, though he will probably not win it.)
They were fully aware of the PRA and it’s sections on Restriction on access (from the link above):
§2204. Restrictions on access to Presidential records
(a) Prior to the conclusion of a President’s term of office or last consecutive term of office, as the case may be, the President shall specify durations, not to exceed 12 years, for which access shall be restricted with respect to information, in a Presidential record, within one or more of the following categories:
(1)(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) in fact properly classified pursuant to such Executive order;
…
(5) confidential communications requesting or submitting advice, between the President and the President’s advisers, or between such advisers; or
…
(b)(3) During the period of restricted access specified pursuant to subsection (b)(1), the determination whether access to a Presidential record or reasonably segregable portion thereof shall be restricted shall be made by the Archivist, in the Archivist’s discretion, after consultation with the former President, and, during such period, such determinations shall not be subject to judicial review, except as provided in subsection (e) of this section.
…
(c)(2) Nothing in this Act shall be construed to confirm, limit, or expand any constitutionally-based privilege which may be available to an incumbent or former President.
…
(e) The United States District Court for the District of Columbia shall have jurisdiction over any action initiated by the former President asserting that a determination made by the Archivist violates the former President’s rights or privileges.§2205. Exceptions to restricted access
Notwithstanding any restrictions on access imposed pursuant to sections 2204 and 2208 of this title—
(1) the Archivist and persons employed by the National Archives and Records Administration who are engaged in the performance of normal archival work shall be permitted access to Presidential records in the custody of the Archivist;
(2) subject to any rights, defenses, or privileges which the United States or any agency or person may invoke, Presidential records shall be made available—
(A) pursuant to subpoena or other judicial process issued by a court of competent jurisdiction for the purposes of any civil or criminal investigation or proceeding;
(B) to an incumbent President if such records contain information that is needed for the conduct of current business of the incumbent President’s office and that is not otherwise available; and
(C) to either House of Congress, or, to the extent of matter within its jurisdiction, to any committee or subcommittee thereof if such records contain information that is needed for the conduct of its business and that is not otherwise available; and
(3) the Presidential records of a former President shall be available to such former President or the former President’s designated representative.
Finally, we have…
§2208. Claims of constitutionally based privilege against disclosure
(a)(1) When the Archivist determines under this chapter to make available to the public any Presidential record that has not previously been made available to the public, the Archivist shall—
(A) promptly provide notice of such determination to—
(i) the former President during whose term of office the record was created; and
(ii) the incumbent President; and
…
(b)(1) For purposes of this section, the decision to assert any claim of constitutionally based privilege against disclosure of a Presidential record (or reasonably segregable part of a record) must be made personally by a former President or the incumbent President, as applicable.
(2) A former President or the incumbent President shall notify the Archivist, the Committee on Oversight and Government Reform of the House of Representatives, and the Committee on Homeland Security and Governmental Affairs of the Senate of a privilege claim under paragraph (1) on the same day that the claim is asserted under such paragraph.
(c)(1) If a claim of constitutionally based privilege against disclosure of a Presidential record (or reasonably segregable part of a record) is asserted under subsection (b) by a former President, the Archivist shall consult with the incumbent President, as soon as practicable during the period specified in paragraph (2)(A), to determine whether the incumbent President will uphold the claim asserted by the former President.
…
(2)(C) If the incumbent President determines not to uphold the claim of privilege asserted by the former President, or fails to make the determination under paragraph (1) before the end of the period specified in subparagraph (A), the Archivist shall release the Presidential record subject to the claim at the end of the 90-day period beginning on the date on which the Archivist received notification of the claim, unless otherwise directed by a court order in an action initiated by the former President under section 2204(e) of this title or by a court order in another action in any Federal court.
(d) The Archivist shall not make publicly available a Presidential record (or reasonably segregable part of a record) that is subject to a privilege claim asserted by the incumbent President unless—
(1) the incumbent President withdraws the privilege claim; or
(2) the Archivist is otherwise directed by a final court order that is not subject to appeal.
But NONE of that includes any reference to or, by inference, the former President having a right to keep their documents and certainly not a right to withhold them from the Archivist. They simply DON’T BELONG TO HIM.
This (assumed) typo just amuses me since it’s likely how she really thinks.
I’m ready to call it. Bolling reads the SDMB (or at least this thread).
The location of the documents doesn’t change who the owner is. When I lend my screwdriver to the neighbor, it doesn’t stop being mine when it leaves my property. They can be the property of the US government at Donald Trump’s house.
The Supreme Court has said that the former President has a claim to keep stuff secret to himself - he has to make that claim and he has to defend it in court, but he is not the simple slave of a Congressional act. Any law that says otherwise is unconstitutional and unconstitutional law remains unconstitutional regardless of how much of it is quoted on Internet forums. Wanting and wishing doesn’t change its legal status.
The documents can’t have been that important, otherwise he wouldn’t be keeping them in a basement room off the pool at his golf club.
eta: /s
Since he didn’t do that why keep defending him?
This is like someone on trial for shoplifting, let’s say, shoes. If their defense is that there’s nothing illegal about wearing shoes and the law even states that, as long as they pay for the shoes, they can keep them at home, would that make sense to you?
What if their argument was that “the store still owns the shoes, I’m just going to keep them at my house now”? Does that seem like something that would get them acquitted?
But this isn’t a screwdriver. Pick something that relates to you the way national secrets relate to the government.
Pretend your neighbor wanted to borrow your car and you said "Sure, if you ever need to borrow my car, just grab my keys off the table and leave me a note.
However, a few weeks after he moved out, you wake up to find your keys missing. You call your old neighbor who informs you he has your keys. He returns some of the keys, but keeps your car keys, house keys and keys to some safety deposit boxes and tells you that, due to your previous agreement, he gets to keep those keys now.
Do you feel the same way about your ex-neighbor being able to use your car, get into your house or access your safety deposit boxes as you do about him borrowing a screwdriver?
If you loan your screwdriver to trump, guess what? It’s now his. And you can’t prove otherwise, or he’ll sue you. You say you have a receipt for the purchase? Fake documents.
It’s sort of brilliant, in a twisted and childish way.
This is incorrect. The Supreme Court has said that the former President has a claim to keep stuff secret FROM THE PUBLIC.
§2205. Exceptions to restricted access
Notwithstanding any restrictions on access imposed pursuant to sections 2204 and 2208 of this title—
(1) the Archivist and persons employed by the National Archives and Records Administration who are engaged in the performance of normal archival work shall be permitted access to Presidential records in the custody of the Archivist;
(2) subject to any rights, defenses, or privileges which the United States or any agency or person may invoke, Presidential records shall be made available—
(A) pursuant to subpoena or other judicial process issued by a court of competent jurisdiction for the purposes of any civil or criminal investigation or proceeding;
(B) to an incumbent President if such records contain information that is needed for the conduct of current business of the incumbent President’s office and that is not otherwise available; and
(C) to either House of Congress, or, to the extent of matter within its jurisdiction, to any committee or subcommittee thereof if such records contain information that is needed for the conduct of its business and that is not otherwise available; and
The case of a former Executive claiming a right to withhold information from the CURRENT Executive has not, to my knowledge and research, ever been litigated and frankly runs counter to the plain language of the PRA.
Looking at Nixon v. Administrator of General Services, I’d probably say that the best read would be that - where there’s some dispute - the Archivist is trusted to be a sufficiently trusted and reliable person/entity for determining whether the materials are sufficiently secret to be hidden from others (potentially including even the current office holder). Usually, we would expect this to take the form of things like, “Not to be revealed to anyone for 60 years.”
Basically, the Archivist should be the “special master”.
I’d like to see a cite for the bolded section ever being applied or even considered for records covered by the PRA. If it’s a “purely private record” then the PRA doesn’t apply, but stuff classified or produced by the government cannot be a purely private record and thus cannot be withheld from the current Executive if “such records contain information that is needed for the conduct of current business of the incumbent President’s office and that is not otherwise available” - ensuring that the law is followed is, of course, the current business of the incumbent President.
- You’re free to point out where I used the words “private record”. I don’t disagree but it’s irrelevant to anything that I said.
- And in general, I don’t disagree with anything you wrote. But what you wrote doesn’t conflict with what I said.