In May 2017, a Washington Post headline blared: “Trump revealed highly classified information to Russian foreign minister and ambassador.” Vox added: “It’s the kind of offense that, when committed by anyone but the president, can lead to a prosecution under the Espionage Act and a significant sentence.” Vox went on to quote Eliot Cohen, a former senior State Department official. “If deliberate,” he said, “it would be treason.”
The “leak” or “disclosure,” or whatever you want to call it, involved warning the Russians of a potential terrorism plot to attack Russian targets. It’s the kind of warning countries give each other as a courtesy and reciprocity to address mutual security interests in thwarting terrorism. Indeed, in 2011, the Russians gave the FBI its own sensitive intelligence warning of the plot to bomb the Boston Marathon. Unfortunately, because the FBI no longer functions as a law enforcement agency, it took no effective steps to disrupt the terrorists.
So the reaction to Trump’s sharing such information with the Russians was simply absurd. The get-Trump mania was in full bloom in those days. Little has changed since then. In fact, FBI’s justification for the Mar-a-Lago raid simply recycled the same phony, get-Trump argument from 2017.
But in 2017, there were still a few adults at the Washington Post who felt the need to educate the public. Another headline read, “No, Trump did not break the law in talking classified details with the Russians,” adding, “The president is essentially the ultimate arbiter of what is classified and what is not. While the heads of particular agencies also have original classification authority—the power to deem material classified or not classified—their authority is limited to their departments and bound by their departments’ particular rules.”
“When it comes to classification issues and those kinds of things, he’s not above the law,” defense attorney Edward B. MacMahon, Jr., told the Post. “He basically is the law.”
In other words, Trump did not break the law by revealing classified information to the Russians because the president is the ultimate authority over what is classified. He can reveal or share anything with anyone regardless of its security classification. He doesn’t need to follow any procedures or make the decision in writing. If the person with whom he shares the information is not “cleared” to access that classified information, then the classification is automatically modified to permit such access. All that’s needed is something that clearly demonstrates the president’s intent to share or otherwise dispose of the classified information. Thus, the moment the president told the Russians about the terrorist plot, those Russians were legally allowed to possess the information.
Now suppose the FBI raided those same Russians to recover said “classified” information. While Joe Biden might have made a different choice than Trump, the fact is, the Russians legally obtained that intelligence from a president. They broke no law in receiving it and they break no law by continuing to possess it.
So let’s now turn to the FBI’s Mar-a-Lago raid. According to the newly released and heavily redacted affidavit, the Justice Department justified using the extremely intrusive search to recover “classified” information. The Justice Department told the warrant-issuing judge, “The government is conducting a criminal investigation concerning the improper removal and storage of classified information in unauthorized spaces, as well as unlawful concealment or removal of government records.”
So how did Trump obtain these documents? Did he sneak back into the White House after Biden took the oath of office? Did disgruntled Biden employees smuggle the documents down to Mar-a-Lago? The affidavit indicates that, “Boxes Containing Documents Were Transported from the White House to Mar-a-Lago.” The affidavit fixes this date at January 18, 2021 when, “at least two moving trucks were observed at the PREMISES,” presumably delivering the “classified documents.”
There’s just one giant problem for the FBI. Biden did not assume office until two days later. When those trucks arrived at Mar-a-Lago, Donald Trump was still president. The decision to repose classified documents in Mar-a-Lago was a presidential decision. Joe Biden might not have agreed with Trump’s decision keep these records after leaving office. But this situation is no different than Trump’s decision to share intelligence with the Russians. He made an executive decision to repose classified documents in his personal residence.
Like the Russians, Trump received the documents from a president—himself. He did not break the law by receiving them. He does not break the law by continuing to possess them. As the Wall Street Journal has noted, the president’s constitutional authority over classified documents trumps any statute purporting to make his continued possession of these documents illegal. All Trump needs to argue is that when he shipped the documents to Mar-a-Lago, he intended to modify the classifications so he could keep them after he left office. Does anyone think he shipped them to Mar-a-Lago without the intention of keeping them? No, of course not.
The get-Trump figures have argued that Trump lacked the authority to convert these documents into his own property because they were the property of the U.S. government. But that is a matter of civil adjudication, not a crime. And it has nothing to do with Trump’s power to modify the classified nature of these documents consistent with his post-presidency status. If Trump took the documents with the intent to keep them, it’s absurd to argue that, while still president, he did not intend to modify the classified nature of the documents consistent with that intent.
Now the FBI and the Justice Department want to overrule that presidential decision to move the documents to Mar-a-Lago and criminalize their political opponent, the former president. By removing the documents from Mar-a-Lago without presidential approval, the FBI seized executive power away from the elected leadership of this country.
The FBI would do well to remember that it has no constitutional authority except what it borrows from the elected president. It must not be allowed to act as a super branch of government with the authority to nullify the decisions of an elected president made while he continued to hold office.