In a column yesterday called, Keep Calm and Carry On, it was explained what the normal procedures are for going through papers of a former President. There is always tension between the National Archivist and a former President about who owns the documents. These negotiations can go on for some time and are usually amicable. “Classified” can mean almost anything from a menu to a doodle to an assessment of an international threat.
This supplemental is intended to provide the reader with current and up-to-date facts about the crisis around the papers of former President Trump. Supplementals will be issued as long as necessary in order to help the Sovereign understand the timeline and the legal theories involved. If we were to wait for the whole episode to end there would be too much information to comprehend comfortably.
The historic act was a decision by the Department of Justice, with approval by the White House, that a Search Warrant should be executed at the home of former President Trump in the early morning hours of August 8, 2022. Thirty agents with long guns arrived at dawn and left nine hours later. The former President was not home and his attorneys and aides were not allowed to monitor the search.
The Constitutionality of the search in light of the 4th Amendment is a separate matter for another time. For now, why did the Department of Justice think this action necessary? These are the facts:
| 1. | After the end of his term as President, boxes of materials from the White House were stored at the former President’s Florida home. Negotiations regarding what materials should be returned to the National Archives were conducted all of 2021 and 15 boxes of materials were returned to the National Archives in January 2022. |
| 2. | The National Archivists noted that there were documents marked classified in the returned boxes and notified the Department of Justice. |
| 3. | On April 11, 2022, the Department of Justice requested of President Biden that the intelligence community and the FBI be allowed to examine the boxes. The Presidential Records Act restricts access to a former President’s records unless necessary for the current President to conduct his business. |
| 4. | That business turns out to be a criminal probe of former President Trump. Evidently, between January and April, a Washington DC Grand Jury had been called to consider indicting former President Trump. President Biden agreed to allow the examination of the boxes. |
NOTE: Three months have passed since materials marked classified were returned.
| 1. | On April 29 former President Trump’s attorneys asked for a delay in allowing access to the material until Executive Privilege, Attorney-Client Privilege, and declassification issues could be determined. |
| 2. | On May 10 the former President’s request was denied by the Acting National Archivist who indicated that the FBI and intelligence community would have access on May 12. On May 11 a subpoena was issued for other classified documents in the former President’s possession and on June 3 more documents were turned over to the National Archives. |
NOTE: the former President’s attorneys assured the National Archives that a diligent search had been made for more documents marked classified.
Someone at the former President’s home alerted authorities that there were more documents. Instead of issuing another subpoena for them the Department of Justice sought a Search Warrant and executed the warrant at dawn on August 8. This is the first time in American history this has ever been done to a former President of the United States.
NOTE: Another four months have passed since materials marked classified were returned.
| 1. | All Hell Broke Loose. The public demanded to know what was going on. The Attorney General made a public statement that the Justice Department could be trusted. No one bought it. The Department leaked stories of material marked classified that contained “nuclear” secrets. More and more leaks from the Department of Justice found their way into the New York Times and Washington Post. |
| 2. | In late August both sides turned to the Courts. The Judge ordered a redacted “Affidavit of Probable Cause” be made public. The former President’s attorneys asked for a Special Master to look at the material seized. The Department of Justice said it had already looked at the material and made a damage assessment so a Special Master looking at the same material would be unnecessary. |
| 3. | On August 31 the Department of Justice filed a 38-page request to deny the need for a Special Master saying, in part, “The government also developed evidence that government records were likely concealed and removed from the Storage Room and that efforts were likely taken to obstruct the government’s investigation [of a crime].” A picture was made public by the Department of Justice of files marked classified strewn on the carpet at the former President’s home. |
CONCLUSION:
What the public thought was a discussion over ownership of records turns out to be part of a criminal probe of former President Trump, begun sometime between January and April of 2022. It involves his alleged handling of material marked classified that might cause potential damage to the country.
What does the Sovereign need to know now?
| 1. | Since we cannot know what the classified material is, we do need to know what damage to the country is being alleged. Anything can be labeled “classified.” The Sovereign must be told immediately what the emergency is and what the harm might be. Eight months have passed. |
| 2. | If an emergency, would it take nine hours to find the document whose leak might cause damage to the country? |
| 3. | Are the former President’s confidential letters and files safe with the Department of Justice? |
Facts, now, are very important to keep straight. As Justice Holmes tells us, “What are the facts to which the rights called ownership are attached as a legal consequence?”
