Capturing the Presidency Without a Vote

On January 20, 2021, documents with classified markings in Mar-a-Lago, Florida, though not actually moving even a square inch, embarked on a figurative journey—traveling from the control of a president into the control of a former president. More than 1,000 miles to the northeast, batches of documents also containing classified markings made a journey in the opposite direction. As Joe Biden took the oath of office, documents in his Wilmington home and at the Penn Biden Center came into the possession of the president of the United States. Two years later, the Justice Department is now using both cases as a pretext to interfere in the next presidential election. In both cases, the larger scandal is the Justice Department’s unconstitutional seizure of authority over classified documents at the expense of elected leaders. 

It is a legal impossibility for a president to mishandle classified documents. In general, the executive branch of the government should not keep secrets from the voters who, as the sovereign, hold exclusive legitimate political power over their subordinate elected leaders. The classification system that keeps secrets from the public falls under the president’s constitutional powers as the commander in chief of the armed forces. Legitimate secrecy can only be justified when the material bears on the security of the nation. And it’s ultimately up to the elected president (who only has that power because the sovereign people delegated it to him by his election) to determine and define under what circumstances these secrets may be revealed to third parties. 

While the president has delegated some of this authority to unelected officials, these powers all piggyback on the president’s authority. Put another way, these officials report to and serve the president who, in turn, serves the sovereign people. No matter how smart the assorted officials of the FBI or the CIA think they are, these agencies cannot overrule a presidential decision regarding the secrecy of a government document. 

In 2017, for example, the intelligence community went berserk when then-President Trump revealed to the Russians that a classified source obtained information that the Russians might soon be the subject of a terrorist attack. But Trump had the legal right to reveal this information and if the intelligence agencies cared anything about democracy, they would not have run to their allies in the media to whine about this legitimate exercise in presidential power.

As I wrote here, the Justice Department should not have raided and seized documents from former President Trump’s private home. A president put those documents in that home. There’s no higher authority required to agree or sign off. But the raid itself, like the Justice Department’s search of Biden’s home, is meant to establish a precedent that the Justice Department or some unelected bureaucrat has a higher authority over secret documents than a sitting president.

Biden’s situation is a bit of a mirror image. On January 21, almost exactly two years after Biden took the oath of office, the Justice Department seized, “six more items, including documents with classification markings,” after conducting a search of the sitting president’s private home. In other words, the Justice Department seized documents from a sitting president who had every right to have them. True, he came into possession of the documents before he became president, when he did not have the authority to take them. But the Justice Department did not take the documents from a former senator or a former vice president. It took the documents from the sitting president.

There’s something very disturbing about the Justice Department searching a sitting president’s private home. Additionally, if one reads carefully, the Justice Department seized more than just classified documents from the Biden home. Why would it do that? One word: leverage.

Biden, the man, deserves little sympathy after encouraging his attorney general’s politicization of the Justice Department’s prosecutions and investigations. Biden gleefully lectured the public as FBI thugs pawed through the private bedroom of a former president and likely rival in the next election. He accused his political opponents of being fascists. He stood by while the Justice Department intimidated parents out of participating in local school board forums. And he’s encouraged hateful and racist “critical race theory” to guide official policy and practice within the government. But Biden will not be president forever. And, sensing weakness, the Justice Department has used the opportunity to gain more and more power over the presidency, current and future.

This is all so predictable. I wrote in December 2020 that President Trump should have pardoned the entire Biden family before leaving office. 

He should pardon the whole family and everyone who could be used as a pressure point against Biden after January. If we must live with the marionette president, let’s cut a few of the strings that were intended for his control. Whether or not you believe Biden was legitimately elected last month, he still got more votes than Christopher Wray.

When Biden acquired his classified documents as a senator and then later as vice president, he had the legitimacy of an elected official. The intelligence community must remain subordinate to our elected officials or we no longer have a functioning democracy. The intelligence community hates this. During the Trump Administration, for example, self-appointed guardians mutinied against the Constitution by refusing to share certain classified information with the elected president. Voters, not bureaucrats, have the ultimate authority to determine who is authorized to handle our nation’s secrets. 

Setting aside the super secret documents both retained outside their elected roles, both Biden and Trump, whether in or out of office, would continue to have access to that information within their own brains. Unless we find a way to erase the memories of former leaders, scooping up classified documents will not secure any secrets that former presidents and vice presidents possess in their own minds. 

This sideshow isn’t about securing secrets. This is about intimidating and controlling presidents and meddling in the process of picking future presidents.  

Everyone knows what’s really going on here. Is this any different than what the FBI did in 2016 when it used criminal investigations to gain leverage over both presidential candidates? The FBI should have no role in determining who should run for president and what can be said during election campaigns. Yet in the mad dash to grab power, the FBI and other government agencies have abused their authorities to do both. This must stop or our Constitution will become as meaningless as the one in Communist China.

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About Adam Mill

Adam Mill is a pen name. He is an adjunct fellow of the Center for American Greatness and works in Kansas City, Missouri as an attorney specializing in labor and employment and public administration law. He graduated from the University of Kansas and has been admitted to practice in Kansas and Missouri. Mill has contributed to The Federalist, American Greatness, and The Daily Caller.

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