A Deeply Fractured US

[Kirkhill]

An Executive Order is not necessary to be an order from the Executive.

Two former senior aides who worked for Trump in the latter half of his term said they were aware that Trump routinely took documents to the residence rather than return them to the Staff Secretary or the intelligence official who provided them. Asked whether there was a standing order, one former official "I don't know anyone or anything that disputes that."

Ordinarily, documents declassified by a president are later retrieved and marked declassified, usually by crossing a line through the prior classification markings. But former top aides to prior presidents acknowledged the president's power to declassify was absolute and at times resulted in instant declassification decisions.

One prior administration official related an instance where his boss, while talking to a foreign leader, gave top-secret information to the leader, declassifying simply by sharing what he had seen in a top-secret marked document. Another official related an instance he witnessed in which a president, during a meeting, received a top secret document and one official got up to leave because his clearance was only at the secret level.

"The president instantly approved that staffer to stay and consume the top-secret intelligence because it benefited the president's work at that moment," the person told Just the News.

The president's detractors in Congress, the DOJ, and the intelligence community are likely to contest the president's arguments. But officials familiar with national security law said courts generally have held the president's power to declassify is far-reaching and that the process for how that happens can be more happenstance, something the Bush and Obama executive orders from 2003 and 2009 made clear.

Obama's (and Bush II's) Rules

Obama's executive order no. 13526, issued in 2009, laid out the stringent process all federal officials and agencies needed to follow for declassification, but explicitly exempted the sitting president and vice president from having to follow those procedures.

"Information originated by the incumbent President or the incumbent Vice President; the incumbent President’s White House Staff or the incumbent Vice President’s Staff; committees, commissions, or boards appointed by the incumbent President; or other entities within the Executive Office of the President that solely advise and assist the incumbent President is exempted from the provisions of paragraph (a) of this section," the Obama order stated.

 

[Kirkhill]

In my opinion the short form is the reason the battle for the Presidency, or the PMO, matters so much is precisely because of these issues.

Who will make the decisions you like?
Who will you trust when making the decisions you don't like?

Of the two the second one is the harder question.

It is clear that many people here find themselves in the unenviable position of not having anybody to trust - in any party or any country.

 

[Oldgateboatdriver]

At the end of the day, should criminal proceedings result, then, like any criminal proceeding, the law will have to fit the facts.

Sorry to disagree with you, Brihard, but in criminal proceedings, at the end of he day, the facts have to fit the law - not the other way around.

(Or as we always said on the defense side: If you can't beat them on the law, beat them on the facts. If you can't beat them on the facts, beat them on the law. And if you can't beat them on either, confuse the hell out of everything and hope the judge/jury screws up in your client's favour.)

 

[FJAG]

Taking a look at that list it appears to me that the winner of the Autocracy Sweepstakes in the US, by a furlong, is the Champion of Democracy - Franklin Delano Roosevelt.

3728 Executive Orders (308 a year)

His nearest competitor was Woodrow Wilson, lagging 2000 orders behind with 1803 (225 a year)

Don't forget the context of the times. Both were war-time presidents and FDR had to contend with the post-depression recovery.

 

[brihard]

Sorry to disagree with you, Brihard, but in criminal proceedings, at the end of he day, the facts have to fit the law - not the other way around.

(Or as we always said on the defense side: If you can't beat them on the law, beat them on the facts. If you can't beat them on the facts, beat them on the law. And if you can't beat them on either, confuse the hell out of everything and hope the judge/jury screws up in your client's favour.)

Sorry, I should have put the two words in the order you did- you’re right. Determine the facts, and determine which law applies and how. That’s what I meant in what I said- what is the correlation between the fact set and the applicable law, and go from there.

 

[Kirkhill]

Don't forget the context of the times. Both were war-time presidents and FDR had to contend with the post-depression recovery.

Context matters indeed - but in 13 years in office you might think that FDR had a fair bit of time for consultation.

 

[lenaitch]

Whereby the elected government can overturn the judgements of the previous government. In British tradition this is tied to the sovereignty of parliament and the notion that no government can bind its successor. For the constitutional governments of Canada and the US that is not true.

I'm not sure I agree; whether a parliament could pass legislation that included a section that says 'this Act exists in perpetuity', or words to that effect. If nothing else, it would make governance completely unworkable.

The Constitution Act 1867, which forms part of our constitutional law, draws a parallel between our Parliament and that of Westminster. It is argued that if a Parliament limited the authority of a successor, it is, in fact, eroding its own authority. Others argue that, since the Sovereign rules with 'the advice and consent' of Parliament, any attempt to limit a given Parliament in the lawful execution of its authority would be limiting the authority of the Crown.

Heady stuff.

 

[Kirkhill]

We had a civil war in Britain over that issue. It decided in favour of Parliament. The Queen and her consort, Mary and William, acquiesced in 1689.

Wiki "Parliamentary Sovereignty"

 

[KevinB]

At least 11 different TS/SCI files apparently.
None showing redacted classification.

 

[dimsum]

At least 11 different TS/SCI files apparently.
None showing redacted classification.

We need a “I declare redaction” version of this.

 

[brihard]

At least 11 different TS/SCI files apparently.
None showing redacted classification.

Where are you seeing that?

 

[Weinie]

I wouldn't be surprised if Trump, being financially troubled, sold classified information to foreign powers. Nothing about him leads me to believe that that would be beyond him.

That is a giant leap well beyond cynicism, or dislike/hatred for DJT. What you are suggesting is high treason. You might want to rein in your hyperbole/neck a bunch.

 

[MilEME09]

That is a giant leap well beyond cynicism, or dislike/hatred for DJT. What you are suggesting is high treason. You might want to rein in your hyperbole/neck a bunch.

Unless evidence comes out to suggest that, I'd agree. Such a crime not only would shake the country to its core but if any foreign nation is involved in this, it will likely destroy the US relationship with said nation.

 

[brihard]

That is a giant leap well beyond cynicism, or dislike/hatred for DJT. What you are suggesting is high treason. You might want to rein in your hyperbole/neck a bunch.

Indeed. Though not quite treason, what he’s suggesting and speculating about is a colossal leap beyond anything that information supports. This isn’t helpful in making sense of just WTF is going on.

 

[rmc_wannabe]

Such a crime not only would shake the country to its core but if any foreign nation is involved in this, it will likely destroy the US relationship with said nation.

That honestly is probablly the lightest response available.

If it's Russia, I think you'd see a cassis belli for the U.S. letting the dogs off the chain in Ukraine....

 

[Remius]

That is a giant leap well beyond cynicism, or dislike/hatred for DJT. What you are suggesting is high treason. You might want to rein in your hyperbole/neck a bunch.

I imagine this part of the warrant is what is making people leap to conclusions.

18 USC 793 (Chapter 37, the Espionage Act), “Gathering, transmitting, or losing defence information”- Maximum ten years imprisonment

It does not mean treason, heck it may not even be Donald Trump who is the subject of it. At this point there isn’t enough to make any conclusions on any side about what’s going on yet. People see “Espionage” act and it brings up all sorts of things in one’s imagination.

 

[suffolkowner]

Can the President even commit treason?

 

[Remius]

Can the President even commit treason?

I would say yes.

 

[brihard]

I imagine this part of the warrant is what is making people leap to conclusions.

18 USC 793 (Chapter 37, the Espionage Act), “Gathering, transmitting, or losing defence information”- Maximum ten years imprisonment

It does not mean treason, heck it may not even be Donald Trump who is the subject of it. At this point there isn’t enough to make any conclusions on any side about what’s going on yet. People see “Espionage” act and it brings up all sorts of things in one’s imagination.

Right. Though 18 USC 793 falls under the ‘espionage act’, that offence can be committed without a communication or intent to communicate to anyone else. I’ll quote something I wrote a couple nights ago exploring what that offence could mean:

18 U.S. Code § 793 - Gathering, transmitting or losing defense information

www.law.cornell.edu

18 USC 793- Multiple subsections, and they don’t specify in the warrant, but I suspect investigators are looking at d) and or e). In short, if someone:

• Has lawful or unlawful possession, access to, or control of;
• Information related to the national defense;
• That could be used to the injury of the US or advantage of a foreign nation, and;
• Attempts to or does communicate it to anyone not entitled to receive it, OR wilfully retains and fails to deliver it

Other subsections require intent to basically hand it over to an adversary, but d) or e) are met if someone has the stuff (lawfully = d unlawfully = e) and fails to hand it over or deliver it to the person entitled. The section does not require the information to be classified. Even if declassified, the definition of “defense information” could easily be met.

So this offence under the ‘Espionage’ chapter of federal law can be committed simply by gathering and retaining defense information and not giving it back. Not dissimilar from s. 4(4) of our own Security of Information Act. Nothing we’ve seen thus far in any way implies or necessitates that there is evidence that anyone acted or intended to communicate any of the information or records that were seized from Mar-A-Lago. We have quite a lot of info about what is going on and can draw a number of reasonable inferences. I think we can stand to be a lot more cautious and restrained in speculating about what else might be going on and stretching to unreasonable ones. The temperature is already very high on this whole thing.

 

[TacticalTea]

That is a giant leap well beyond cynicism, or dislike/hatred for DJT. What you are suggesting is high treason. You might want to rein in your hyperbole/neck a bunch.

That's true. I'm not saying it's what happened. Just that it wouldn't surprise me if it did.

Might not necessarily be treason; I don't know what is considered ''aid'' and what is considered ''enemies'' under that statute. ''High'' treason doesn't exist under the US Code. I don't hold any sort of ''hatred'' for the man, being Canadian, his antics are mostly Americans' problem, not mine. Except in particular cases such as this one.

I don't see it as a colossal leap. For one, DJT has generally shown total disregard for the US, its institutions and its constitution. And secondly, why would he hold on to classified material? Financial gain is one possibility amongst others. Curiosity is not, as it is public knowledge that he would get easily bored and distracted during his intelligence briefings.