22nd September 2022
A theme of this blog is that law is akin to magic, and that law and lore have a good deal in common.
But the comparison is only made as a-kind-of-analogy.
I never thought that when writing about law in modern times I would come across actual magical thinking.
I was wrong.
Consider this:
Trump says as president he could declassify documents just by thinking in his head that they're declassified.
That's beyond wrong, it's insane.pic.twitter.com/5tR30e7Clb
— Citizens for Ethics (@CREWcrew) September 22, 2022
Here the proposition is not that Trump could unilaterally, by some form of words, either in writing or said aloud, change the classification of documents.
The proposition is that by thinking a thing, with that thought having no other trace or manifestation, then a classification of a document can change.
This would mean that the legal consequences for other people with reference to that document would be different, even though there was no record of Trump’s thoughts, because Trump had thought one thing or another.
And, presumably, Trump can classify the document by thoughts alone, as well as de-classify it.
Perhaps he could even in turns classify and de-classify a document every few moments, and nobody would ever know.
It would be an extraordinary thing – even supernatural and paranormal.
*
Of course, what is (probably) going on is that Trump is resorting to the only defence he thinks he has left, which accords with the evidence.
There is no actual evidence of de-classification, then his explanation needs to deal with that absence.
There is also the implicit point that if he accepts these are documents which he “de-classified” then they were not “planted” – as that defence would seem to contradict his purported “de-classification”.
It is all very odd.
*
Stepping back, it would seem Trump has realised that he is in serious legal jeopardy.
If anyone else had been found with such classified documents without authority or lawful excuse then that person would no doubt have been arrested and charged, convicted and imprisoned.
The only difference here is whether the law applies to Trump as it applies to others.
Or is there a legal privilege for Trump?
This is a hard question for the rule of law: is there one law (or lack of law) for him and one for others?
Perhaps following his exercise in magical thinking, Trump would accept criminal liability if enough people think that he is guilty?
Or perhaps not: one suspects he would want to rely on real-world law and procedure, where things are properly written down and recorded.
For that is the thing about those who want to be above the law: they wish to dispense with legal formalities when it suits them, but they certainly want the protection of legal formalities when it protects them.
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Very well put, particularly your conclusion, but I would encourage you to tweet a link to this piece so that the US audience can read it. They should.
This paragraph makes no sense to me:
The proposition is that by thinking a thing, without that thought having no other trace or manifestation, that a classification of a document can change.
I think the intended meaning is conveyed by:
The proposition is that by thinking a thing, with that thought having no other trace or manifestation, a classification of a document can change.
or:
The proposition is that by thinking a thing, without that thought having any other trace or manifestation, a classification of a document can change.
I am far from being a Trump supporter, but is it possible for him to argue in court that the act of moving the documents to his new home implied he had declassified them?
Of course, the “I thought they were declassified therefore they were is” line silly though!
No.
The protocols required for the de-classification of classified materials created by the US Government was amended by… Barack Obama. He introduced additional requirements that have to be completed before de-classification can be confirmed, of which the most important is that the document has to be referred back to the Author (typically a department in the Intelligence Community or similar) and that entity has to sign off on the de-classification.
This additional step was introduced precisely to address a concern relevant to the instant case, in that it has been reported without substantiation that some of the materials removed from Mar-A-Lago included SCI (Sensitive Compartmented Information, which is even more tightly controlled than generic “Secret” or “Top Secret” because the information itself may contain details relating to, for example the sources and/or methods employed in the collection of that confidential data.
For example, a report that described what President Putin had for breakfast yesterday might well be SCI, not because President Putin’s dining habits are confidential, but because the data point and the timing of that data point might narrow down the number of potential human sources for that information in a way that identifies a highly-placed informant in the Kremlin…
Because of this sort of risk, it was determined by the Obama administration that de-classification, whilst being something that the President can initiate, can only go so far as the initiation of the process at the direction of the President. From that moment onwards, a formal process has to be followed, necessarily including the author of the data.
As part of the process, the confidential markings – which are necessarily reproduced on every side and every page of a confidential report, have to be “struck through” in a manner which documents/demonstrates that approved de-classification has occurred. That step also requires information about the approved – the date of approval and the identity [signature] of the source author concurring with the declassification request.
All of the above has been discussed by the more reputable US legal reportage on this topic.
At this time Mr Trump is sowing confusion and dischord; he is “flooding the end zone” to use an American Football analogy to describe the effect of aggressively publicising random plausible-sounding [but false] ‘justifications’ for his actions.
If you search for and review the transcripts of the New Jersey hearing conducted by the Court-appointed Special Master, Judge Raymond Dearie, you will be aware that he knows the above all too well. In the first hearing, Judge Dearie asked counsel for the plaintiff – Mr. Trump – if they were advancing this de-classification theory. Mr. Trump’s counsel declined to answer, claiming that to do so would disclose their legal strategy for the case.
Judge Dearie was not in the least taken in… (He is one of the Judges that has presided over the FISA Court and is more than familiar with the perils of handling confidential data). He advised Mr. Trump’s counsel that if they were unable to provide *evidence* of the de-classification process, then he would basically take the Department of Justice position as Prima Facie confirmation on the grounds that Mr. Trump’s counsel were unable to substantiate their claims. He went so far as to remind Mr. Trump’s counsel that they were the moving party – i.e. the plaintiff – and as a consequence the burden of proof – to evidence the validity of their claims – fell to them.
Now, that might give us a ‘bit of a giggle’ in that from this perspective we can probably agree that their arguments are utter hogwash, but Trump’s counsel this week got perilously close to the line where they were about to make a false representation before Judge Dearie. Irrespective of whether a lawyer is counsel for plaintiff or defendant, all are considered, “Officers of the Court” and court rules require them to act with candor at all times. That is one of the reasons why a lawyer will tell a client, “If you have broken the law, or are considering breaking the law, don’t tell me, because if the judge asks me point blank, I am *required* to tell them what you have told me…”
If you want a really entertaining read, take a look at the ruling from the Eleventh Circuit Court of Appeals, that took up the DoJ’s appeal of the original ruling from Judge Aileen Cannon, who is presiding over the case. To say that the 11th Circuit Appeals court eviscerated her ruling would be a kindness… They basically expressed disbelief that a sitting judge had written it – and their ruling has been written to be appeal-proof – to make it basically impossible for Mr. Trump’s counsel to try and appeal it to the US Supreme Court.
Between this Mar-A-Lago documents case and the Civil case just filed by New York AG Tish James, it’s a bit of a question as to which might come home to roost first. Especially as Tish James has indicated that some of her complaint includes potential criminal liability for Mr Trump (her case is a civil complaint)… so in other words there could be a ‘perfect storm’ forming over the President’s head around now.
It would indeed be delicious irony if the thing that finally brings Trump down is a rule introduced by Obama!
I am not a US criminal lawyer, so take this with a pinch of salt, but is a US judge really likely to ask the lawyer directly “is your client guilty?” or “has your client admitted guilt to you?” More generally, is a US lawyer *required* to disclose what their client has told them if the judge asks about it? What about legal privilege?
I thought the point about lawyers not asking their clients if they had broken the law is because the wrong answer (i.e. “yes, I have”) puts the lawyer in a bind between their obligations to represent the client, and their obligations to be honest and not mislead the court.
As long as the client maintains they are innocent, the lawyer can represent that position as best they can, but as soon as the client admits they are guilty then the lawyer can no longer honestly argue they are innocent, and so must withdraw, or stay silent, and move to mitigation.
Perhaps I am mistaken.
Thanks – a very clear answer!
Fantastico; very informative & entertaining!
Judge can’t compel a lawyer to tell him what the client said.
The rule is that a lawyer cannot make representations in court which are inconsistent with their client’s instructions.
Oh not only amused actually still lol.
But magical thinking seems to be a theme in our time.
My guess is that the laws concerning fraud require it to be wilful or dishonest. If he believed that the documents were declassified because he declassified them by thinking it he escapes criminal liability, even if the declassification was not valid.
But how would he prove he believed it – there being no record?
I assume he doesn’t need to prove he believed it, rather, the prosecution would need to prove he didn’t believe it, which is obviously impossible.
I’m not sure about that (of course, I’m not a lawyer).
What the prosecution would have to prove is that classified documents were taken.
As they are – I assume (again, not a lawyer) – listed somewhere as classified, would the onus not be on Trump to prove they were not classified?
I’m not familiar with the words of the statute in this case, but in general the prosecution must prove every element of the offence. So if the offence is “taking classified documents” then the prosecution must prove both that the documents were taken and that they were classified.
Still not a lawyer, but:
In, say, a murder case – if the defendant pleads diminished responsibility, isn’t the onus on the defence to prove that first (although the prosecution may then want to demolish the case).
Yes, exactly this.
It makes perfect sense if you think about it. On the subject of whether or not a document is ‘classified’, you want your protocols and procedures to ‘fail safe’ and not ‘fail dangerous’.
In other words, once a document has been deemed classified – and for the work product of the Intelligence Community that happens routinely at the moment of creation – the default position would be that a document remains classified unless and until it could be proven otherwise.
Mr. Trump can make all the absurd claims he pleases.
This isn’t the U.S. Government’s first rodeo.
Yes, Kieran, provided that, as I understand it, the offence is not an absolute offence
No.
Not true.
The declassification or otherwise is a red herring.
18 U.S.C. §§ 793, 2071, 1519 were on the search warrant. None of those relate to classification.
TFG had documents he shouldn’t have had, end of.
“My guess is that the laws concerning fraud require it to be wilful or dishonest. If he believed that the documents were declassified because he declassified them by thinking it he escapes criminal liability, even if the declassification was not valid.”
Trump’s fraud travails are aside from this. The keeping of these documents (whether or not they are classified) is actually irrelevant to the DoJ’s case that their possession by Trump is in breach of several national security statutes regardless of their actual classification.
The simple act of possessing them without an unequivocal legal right to them, is the matter at hand – not whether he supposedly thought he could keep them because he thought he could declassify them by the power of his will alone – and he knew he wasn’t entitled to them, because the US National Archives had spent over a year trying to get him to hand them back.
Note that as of today, his own legal team has been flatly unable to provide any reasonable explanation for their retention in Mar-A-Lago, and they’ve been using the classification status as a transparent Red Herring.
One might argue that, “… one law (or lack of law) for him and one for others?” describes legal privilege rather well (if “he” is a lawyer)!
One might argue that – and accountants and other professional advisers who wish they had the same privilege often do – but, in English law, at least, legal professional privilege – legal advice privilege, and litigation privilege – is a protection for the client.
Anyone might be a client; everyone is entitled to obtain legal advice, and (with few exceptions) their lawyers cannot be compelled to disclose those discussions or the resulting legal advice to a third party without their client’s consent.
Are you suggesting that is a bad thing?
Presumably, as he believes a document can be declassified merely by his thinking about it, he also believes the law doesn’t apply to him because he thinks it doesn’t.
Truth is indeed stranger than fiction.
I would say that this needs to be seen in its political context.
Namely, roughly 1/3 of the population of the USA are supportive of Trump regardless of what does or says as they believe he has their interests at heart.
That doesn’t mean that that constituency if asked to look at the above clip and will say “yes, this makes total sense”. Rather they see Trump as defending himself whatever way he can. In this mindset his defense is synonymous with theirs.
Trump is betting that constituency is large enough that the will to carry through the consequences of law will not be there.
Exactly this.
There is a parallel reality that he shares with his hyper-partisan supporters and it is only to them he is talking to, hoping that they will be powerful enough to swing it for him.
As for himself he is not so deluded to believe his own statements. He knows exactly what he is doing, as is shown by the fact that he does not care to make these statements in court.
The wheels of justice turn exceptionally slowly, but they grind exceedingly fine…
I wrote yesterday about legal blogs demonstrating how rank government can often not implement its verbal excrement.
Thanks to today’s blog, and Rees-Mogg’s performance, I am also reminded of the black comedy which can be fracked from the utterings of dangerous extremists.
Small crumbs of comfort.
Wider point – Some of TFG’s defenders have publicly said that that the US DOJ should not be making moves against him because it would incite his supporters to violence.
Quite aside from the “Look what you made me do” aspect that could have been lifted wholesale from a Domestic Abuse survivors’ testimony, the implication is definitely the inverse of what you suggest – The idea that if enough people believe that no crime as been committed, purely on TFG’s say-so, that there is no crime to investigate.
And as corollary, if enough people *do* believe that nothing untoward has taken place, and vote TFG back in in 2023, then the question of whether any crime has been committed becomes moot. So the Law could be circumvented by Magical Thinking; Enough people involved in the mystic ritual of Voting could completely counteract it
But since there are no legal formalities or fixed procedure for a President to declassify documents then it may be “beyond wrong and insane” but is it invalid or unlawful?
https://www.nytimes.com/2022/08/14/us/politics/trump-classified-documents.html#:~:text=Are%20there%20formal%20procedures%20for,sets%20some%20standards%20for%20them.
Still not sure whether Trump is amoral or immoral: his pathological narcissism complex maybe indicates the former. Concatenation of his deeds is upon him. I hope one of his favourite colours is orange. He may find herself wearing a suit of that hue for some time.
“I hope one of his favourite colours is orange.”
It would be awfully surprising if it were not.
Given that he routinely paints himself orange I think we can safely assume that, yes, he likes the colour.
Be prepared to witness the Pablo Escobar solution. He negotiates consent to building his own suitably remote “prison”, i.e., palace, in which he promises to remain under house-arrest/confinement, employing his own guards.
Damn.
I just thought invoked ownership of a bunch of stuff from Spar then plod turned up and refused my Magna Cartman argument so now I am on a ward being asked about my Trump ideation.
It’s like this: When President Trump thinks, ‘Let a thing be declassified,’ it’s as good as declassified– practically, it is declassified– because Trump’s thought is law.
(With apologies to W.S. Gilbert.)
The Head of Stae in UK is HM The King. He has legal immunity from criminal liability. Probably goes back to the ancient point that a Lord could not be a defendant in his own court.
Charles III has no true power- unlike a US President. The true power rests with HM Government and Ministers have no immunity from criminal law.
People like Trump who exercise real power ought not to have immunity.
We really are in Looking Glass world. Pity Donald Trump doesn’t unthink his name.
“The Gnat amused itself meanwhile by humming round and round her head: at last it settled again and remarked, ‘I suppose you don’t want to lose your name?’
‘No, indeed,’ Alice said, a little anxiously.
‘And yet I don’t know,’ the Gnat went on in a careless tone: ‘only think how convenient it would be if you could manage to go home without it! For instance, if the governess wanted to call you to your lessons, she would call out “come here—,” and there she would have to leave off, because there wouldn’t be any name for her to call, and of course you wouldn’t have to go, you know.’
‘That would never do, I’m sure,’ said Alice: ‘the governess would never think of excusing me lessons for that. If she couldn’t remember my name, she’d call me “Miss!” as the servants do.’
‘Well, if she said “Miss,” and didn’t say anything more,’ the Gnat remarked, ‘of course you’d miss your lessons. That’s a joke. I wish you had made it.’
‘Why do you wish I had made it?’ Alice asked. ‘It’s a very bad one.’
But the Gnat only sighed deeply, while two large tears came rolling down its cheeks.
‘You shouldn’t make jokes,’ Alice said, ‘if it makes you so unhappy.’
Then came another of those melancholy little sighs, and this time the poor Gnat really seemed to have sighed itself away, for, when Alice looked up, there was nothing whatever to be seen on the twig, and, as she was getting quite chilly with sitting still so long, she got up and walked on.”