In his 1881 book entitled The Common Law, Justice Oliver Wendell Holmes, Jr wrote: “[W]ith regard to possession, the first question must be, ‘What are the facts to which the rights called ownership are attached as a legal consequence?’”
Facts determine ownership, not necessarily possession, possession considered 9/10ths of the law, notwithstanding. This concept goes back to Roman times along with Common Law and Congressional statutes and forms our own enforceable understanding.
In the current controversy regarding ownership versus possession of Presidential papers, it is vital that we divide the whole brouhaha into three distinct parts and wait to get all the facts.
Part I
THE PAPERS AND EFFECTS OF A FORMER PRESIDENT
In a sense, every piece of paper created during the term or terms of a President of the United States is owned by the People of the United States. What may seem innocuous – the guest list for a rehearsal dinner – may or may not become an issue of national import. So too, a medical report or even a doodle while on the phone with a head of state could, under the right circumstances, be considered a paper belonging to the United States.
The practice is to let Presidents leave office with papers and effects relative to that Presidency, making sure they are stored securely, and then sorting through what is personal and what is archival. This is wholly negotiated, as the US Archivist might think all belong to the United States and the former President wants his personal private papers and other mementos of his Presidency.
Sometimes these negotiations take months or even years depending upon the volume of material. All of this is quite normal in modern times and usually carried out with some equanimity on all sides. The furniture and other gifts that President Clinton took out of the White House that belonged to the public were eventually returned to the National Park Service or partially paid for.
If in leaving the White House documents are taken that implicate serious national security issues, they would be returned. The Secret Service protects all our former Presidents and their homes and possessions. Still, it is a gray area. Herbert Hoover had massive amounts of sensitive original material for his memoir, Freedom Betrayed, which involved controversial decisions of FDR, but times were different.
Facts determine ownership. Keep calm, the facts about the documents taken are being sorted out.
Part II
4TH AMENDMENT PROTECTIONS FOR A FORMER PRESIDENT
Once a private citizen, a former President of the United States is entitled to all the protections of the Bill of Rights. The 4th Amendment says:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
This means no general Warrants – this means probable cause that a crime has been committed (a high standard) – supported by Oath, enforced by a charge of perjury – this means particularly describing what is being looked for – and where, particularly, it is thought to be.
In this case, the Department of Justice has alleged federal crimes and obtained a search warrant from a magistrate to find evidence of them in the home of a former President. Normally, a subpoena would be issued for their return. If, in finding the document or documents sought, another document implicating a federal crime is seen “in plain sight”, that document may be seized, also.
If any significant time lapses, the argument regarding security concerns diminishes. “In plain sight” means that a particular item is seen while collecting another, not just “I see a room full of boxes.” A warrant that says, “All papers from 2017 to 2022” is not particularly describing the “things to be seized” nor is “any place in the home the former President has used” particularly describing the “place to be searched.” The search must be for specific effects and carried out as quickly as possible. The inventory list should say “passport” not “box #13.” It should have been monitored.
We have the 4th Amendment because British officials, when we were colonies of Great Britain, used to issue Writs of Assistance and General Warrants that allowed any British official (usually customs officials) to use the Sheriff to enter anyone’s home and rummage through it looking for untaxed goods. They even seized a ship of John Hancock’s The Liberty, thought to be carrying too little Madeira wine, (therefore guilty of smuggling it ashore), and forced it into the British fleet. Today, illegal Writs of Assistance are called National Security Letters under the glaringly unconstitutional Patriot Act.
The 4th Amendment is not just words on a piece of paper. Keep calm – The Bill of Rights provides protections for former Presidents and regular citizens in equal measure.
Part III
FORMER PRESIDENTS RECEIVE THE BENEFIT OF THE DOUBT
Every President of the United States is entitled to the deference of The Office of President. Administrations of a different political philosophy are required to practice this deference. A weapons-drawn execution at dawn of a Constitutionally questionable Search Warrant at the home of a former President also violates the Law that lubricates our civil order – Unwritten Law – the Law of “goodwill” and “comity.”
Unless this is the gravest of emergencies, the only explanation for the decision by the Attorney General to do such a thing would be to send the message that Donald Trump was not really elected President and is owed no deference. For this reason, the public must be told immediately what the emergency is. Such an historic act would be approved at the very top of the Executive Branch. A current President attempting to erase a past President, and getting away with it, would render the Supreme Positive Law of the Land – the US Constitution – a useless document.
Unless dire, it’s not the papers, it’s government perfidy. Keep calm – we must carry on.
