No. of Recommendations: 7
So, the Presidential Records Act dispute is over whether the bolded phrase - "unauthorized possession" - can be proven by the prosecution. But here's the thing - there's an exactly parallel subsection (18 USC 793(d)) that has the exact same language that applies to anyone "lawfully having possession...." of all that stuff as well. The defense is proceeding on a theory that if they can prove that Trump had lawful possession of the documents under their PRA case that section (e) doesn't apply (which is probably correct).
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The key to arriving at a correct interpretation of the applicable laws will require separating the facts at hand into separate buckets and ensuring terminology doesn't get intentionally mixed across the buckets. It could be argued that any attempt to escape the proper interpretation and enforcement of these laws will require intentionally MIXING these concepts to confuse a potential jury or provide cover to a judge attempting to ignore the actual law for the benefit of a defendant.
The buckets of fact are:
1) the NATURE of the documents -- Here, the PRA governs and clearly states documents subject to the PRA are all agency originated documents, working papers, drafts, etc. that are shared with the Administration AS WELL AS personal notes, logs, diaries maintained by the President. As far as the PRA is concerned, the word "mine" doesn't exist when it comes to Presidential records. The only applicable word is "ours" as in the National Archives. Note that the applicability of the PRA has nothing to do with the security classification of the material. Even documents related to the planning and execution of the yearly Easter Egg roll on the South Lawn are covered by the PRA.
2) the PHYSICAL location of the documents at a particular point in time -- A sitting President is allowed to take any document anywhere he/she wants to go. The White House residence area, the President's personal home or vacation home, the President's favorite bar. There is a presumption that anything the President deems is "needed" near his / her physical being is allowed and that his Secret Service detail would presumably provide enough protection for that material. These rights of a President to physical posession of such materials VANISH when the person is no longer President.
3) the unlawful HOUSING and RETENTION of documents -- It isn't unlawful to accidentally pack a document subject to the PRA at the end of an administration and take it somewhere outside the control of the National Archives or the government. If such a document is identified by the National Archives, a request is filed to find and return the document and the document is returned, there's no crime. If instead missing documents ARE identified and the former President refuses to return them, then the government can prove INTENT to house and retain the documents and we have a crime, regardless of the national security nature of the document.
4) the unlawful TAKING, HOUSING and RETENTION of national security documents -- This law is broader than the PRA because it covers the actions of ANY American citizen INCLUDING the President or staffers working within the White House for a President. For personnel who are NOT the President, this law drastically restricts WHAT material can be seen by individuals and drastically restricts WHERE those documents can be viewed and retained throughout their life. A person other than the President with TOP SECRET clearance in possession of or viewing a document classified as TOP SECRET within a facility not rated to phsyically house and protect TOP SECRET documents (e.g. a SCIF) is violating the law regarding national security information. There are other aspects of national security laws regarding HOW documents are classified based on their content or department of origin and control HOW such classifications can be changed and those laws do NOT provide any sitting President the ability to single handedly and instantly change a classification. The President can originate a request to change a classification (up or down) or remove it entirely but that process involves review so affected agencies can triple check such changes would not divulge OTHER classified info and expose American or allied intelligence assets to harm.
At this point, Cannon's actions only support a limited number of possible explanations.
A) She doesn't understand the intent or application of the applicable laws and is making ZERO effort to educate herself by consulting competent counsel in the area of national security. This is evident because she is issuing these terse, hair-brained directives within MINUTES of the conclusion of four hours of presentations in front of her. It is also worth noting that her decisions include ZERO citations of prior cases that she is using to support her decision, in glaring contrast to any other opinion that has gained public attention over all of these recent Trump cases. Despite her written statemtents describing her "careful consideration" of the matter, there's no way she drafted a response within thirty minutes of concluding oral arguments from the two parties. It appears she had the next decision pre-drafted and was going through the motions by scheduling and conducting oral arguments.
B) She doesn't understand the intent or application of the law but is merely trying to identify a suitable level of perceived vagueness in the applicable law she can further muddle to justify coming to a decision which seems guaranteed to support tossing the entire case. Only worse, she is so intellectually incompetent and lazy that she is attempting to perform a bit of legal jujitsu on the lawyers in the case to get them to do her homework for her and volunteer language in the statutes that more learned persons of the law might fret about so she can cite THAT as rationale for whatver inanity she finally concocts.
At this point, I suspect this may explain why Jack Smith has not augmented the charges in the Florida case with the actions related to the documents taken to New Jersey. If Cannon waits until a jury is empaneled to suddenly toss this case, double-jeopardy protections will have attached to these charges and there is no way for prosecutors to re-file these charges against Trump. It seems clear the material shared with reporters in New Jersey was also highly classified and is of equal national security importance to anything recovered at Mar-a-lago so Smith is likely freaking out about the risk of having all potential charges for these national security threats destroyed by an incompetent at best or thoroughly corrupted judge.
WTH
