very long column, but McCarthy is gold standard on the conservative law scale so worth a read.
By
ANDREW C. MCCARTHY
August 24, 2022 3:59 PM
It turns out the former president tried to block FBI access to retained classified documents, but Biden intervened.
In my columns
Monday and
Tuesday, I stressed that President Trump could talk himself into being charged by the Justice Department by making public claims that prove to be untrue. This is especially so if what proves to be untrue are claims depicting Trump as fully cooperative and transparent, in contrast to the Justice Department, which is portrayed as the corrupt cat’s-paw of the Biden White House.
I should have added that the former president could find himself in even hotter water if, as is often the case, his more exuberant allies try to substantiate his combative story lines, without much thought about whether they are well thought through and, well, you know . . . true.
The Presidential Records Act (PRA), about which we’ve heard so much in recent weeks, allows former presidents to designate liaisons to have access to their records, which are maintained by the National Archives and Records Administration (NARA).
One of Trump’s liaisons is John Solomon, the longtime journalist and editor of
Just the News.
On Monday night,
Solomon broke a story about a May 10, 2022,
lettersent by the acting archivist, Debra Steidel Wall, to attorney Evan Corcoran, who had recently joined Trump’s legal team (he was also representing Trump confidant Steve Bannon, who was later
convicted on criminal-contempt charges). Corcoran had taken the lead in the former president’s dispute with NARA over presidential records retained at Mar-a-Lago in apparent violation of the PRA. The dispute was poised to explode into a criminal investigation, mainly because some of the documents were highly classified.
Solomon obviously published details about the archivist’s letter because it puts the lie to the Biden White House’s implausible claim that the incumbent president has had no involvement in the Justice Department’s investigation of his predecessor, which resulted in the August 8 Mar-a-Lago search. This will prove embarrassing for Biden, but only because it is a foolish lie.
As I’ve noted, given that national-security concerns about classified intelligence were a prime mover here, and that the search of a former president’s home by the FBI was historically unprecedented, there would have been something profoundly wrong if the incumbent president was not involved. Moreover, as we shall see, Biden’s involvement was statutorily required under the circumstances.
Clearly, the purport of Solomon’s news report was to bolster the Trump narrative that Biden is using the Justice Department as a political weapon in hopes of eliminating Trump as his potential 2024 opponent. Okay . . . but the problem is that Archivist Wall’s letter shreds Trump’s claim — most recently proclaimed in a lawsuit filed with great fanfare on Monday morning — that he has been completely cooperative and transparent in dealing with the FBI and the Justice Department, and therefore that the forcible search of his Florida estate was an unnecessary, inexplicable abuse of power.
The letter, to the contrary, details Trump’s stubborn determination to block the FBI from examining boxes of records containing documents marked as highly classified, which Trump had grudgingly returned to NARA in January 2022. Further, Trump triggered Biden’s necessary involvement (under the PRA) by dubiously invoking executive privilege. That is, Trump’s self-absorbed priority was to frustrate the FBI’s examination, rather than to support the government’s patent need to assess the possible damage caused by his mishandling of top-secret intelligence.
According to Wall’s letter, “throughout 2021,” NARA was involved in “communications” with Trump’s representatives because it was obvious that presidential records, which should have been inventoried and stored in the National Archives, were being retained in Mar-a-Lago. This dialogue eventually resulted, in January 2022, in the transfer of 15 boxes of Trump records to NARA.
Upon inspection, Wall recounted, “NARA identified items marked as classified national security information, up to the level of Top Secret and including Sensitive Compartmented Information and Special Access Program materials.” This is the nation’s most tightly guarded classified intelligence. The letter elaborates that the 15 boxes contained “over 100 documents with classification markings, comprising over 700 pages.”
This is an extraordinarily serious breach. In 2016,
I addressed the analogous scenario of Hillary Clinton’s recklessness with top-secret intelligence (citing Edward Lucas’s enlightening book,
The Snowden Operation: Inside the West’s Greatest Intelligence Disaster):
Take just a single document that contains a defense secret, or conveys the method or source by which secrets are acquired. If the agency discovers the document has been lost, or comes to “believe an unauthorised person has had access to it, assumptions must be of worst-case scenarios.” What could a hostile government or terror network do with that information? Will they kill an intelligence agent who has been outed? What about operatives the agent has been running — who must then be pulled out to avoid arrest, or worse? Even if our spies are safe, their operation must be considered blown, along with arrangements on which the operation relied — cooperating businesses, bank accounts, safe houses, drop boxes, etc.
As the archivist explained, quoting a letter the Justice Department sent to Corcoran in late April, when there is a possible security breach implicating highly classified information, the issue is not merely that this information becomes the grist for a criminal investigation. “The Executive Branch must also conduct an assessment of the potential damage resulting from the apparent manner in which these materials were stored and transported and take any necessary remedial steps.” For that reason, once NARA referred the matter to the Justice Department upon discovering highly classified information in the 15 boxes, the Justice Department wanted the FBI to have “immediate access to these materials so as to facilitate the necessary assessments.”
“Immediate,” it seems, is in the eye of the beholder.
The Washington Post, to which Democratic administrations and Justice Departments customarily leak like a sieve, says the FBI spent February and March “interview[ing] several Archives officials about the returned classified documents and their interactions with Trump’s team.” I must say, I’ve never seen a crisis mode in which what sounds like two days’ work is squeezed into two months.
In any event, the bureau was finally prepared to review the boxes in April — some three months after the boxes were delivered to NARA. Consequently, by the terms of the PRA, Biden had to get involved.
Access to records generated in a previous presidency is generally restricted. Among the few
exceptions, however, is that the incumbent president may obtain access if the records are “needed for the conduct of current business of the incumbent President’s office.” The Justice Department thus asked President Biden “to request that NARA provide the FBI with access to the boxes at issue so that the FBI and others in the Intelligence Community could examine them.” On April 11, Biden complied with this request, with the White House Counsel’s Office formally asking NARA to give the FBI access.
Under the PRA, such a request requires that the former president whose records are at issue be notified and given the opportunity to object. Ergo, on April 12, NARA wrote to Trump’s representatives, informing the former president that, “in light of the urgency of this request,” NARA planned to provide access to the FBI the following week. A lawyer for Trump requested an extension of this deadline, which the Biden White House Counsel’s Office accommodated, so that NARA moved the production date to April 29.
Yet, on April 29, Trump’s counsel sought a further delay in disclosure to the FBI (apparently repeating this request on May 1). The Trump camp’s April 29 request was a classic exercise in brinksmanship. The former president waited until the deadline day and then asked for apparently unspecified additional time. The idea was that Trump lawyers would first be permitted to review the 15 boxes, and would then consult with Trump “so that he may personally make any decision to assert a claim of constitutionally based privilege.” Hedging their bets, Trump’s counsel added that, in the event NARA declined to grant further time for this review, the archivist should deem the former president to have made “a protective assertion of executive privilege.”
Trump’s attempt to assert privilege, yet again, necessitated Biden’s involvement in the controversy. Under the PRA (the specific provision is
section 2208(c) of Title 44, U.S. Code), if a prior president lodges a claim of constitutionally based privilege against disclosure of presidential records, the archivist must “consult with the incumbent President . . . to determine whether the incumbent President will uphold the claim asserted by the former President.”
Naturally, Biden realizes that Trump will portray any appearance of Biden’s involvement in a criminal investigation of Trump — even if it is required by law — as a sinister politicization of the Justice Department to help the incumbent president sideline his once and likely future Republican opponent. Thus, as Trump dragged his feet, trying to delay the FBI’s examination of the records by failing to articulate a concrete privilege claim, Biden schemed to thwart him by countermanding the vague privilege invocation — just as Biden had previously done,
with the approval of the courts, in connection with the House January 6 committee’s probe. But this time, Biden is pretending to have had nothing to do with this countermand — i.e., to have delegated to other officials a decision about executive privilege that, constitutionally and statutorily, only Biden had the authority to make.
As Wall puts it, Biden deferred to her judgment, which she proceeded to exercise with the Biden Justice Department’s Office of Legal Counsel (OLC) whispering in her ear. According to the archivist, OLC
advised me that there is no precedent for an assertion of executive privilege by a former President against an incumbent President to prevent the latter from obtaining from NARA Presidential records belonging to the Federal Government where “such records contain information that is needed for the conduct of current business of the incumbent President’s office and is not otherwise available.” [Citation omitted and emphasis in original.]
The bent of Solomon’s reporting about Wall’s letter highlighted Biden’s involvement in the investigation and his machinations to feign noninvolvement. These, however, are the story’s least significant threads. On Trump’s cost/benefit ledger, moreover, drawing attention to Wall’s letter is a loser, bigly.
There should not be any dispute that if highly classified documents had been retained at Mar-a-Lago, and had been accessible to people who did not have the top security clearances necessary to view them, then it was urgent for the FBI and other intelligence officials to examine the documents and assess the damage — to determine if informants were compromised and potentially in danger; if intelligence methods had been exposed, leaving the government vulnerable to disinformation; if sensitive intelligence operations had to be aborted; and so on.
Representative Chris Stewart, a Utah Republican member of the House Intelligence Committee who is no never-Trumper, told Politico, “I mean, if he had actual Special Access Programs — do you know how extraordinarily sensitive that is? That’s very, very sensitive. If that were actually at his residence, that would be a problem.”
If, as appears to be the case, it was appropriate for the FBI to conduct this review of Trump records, then the PRA mandated Biden’s approval and his review of any Trump privilege claims. As a result, there is very little upside for Trump in emphasizing Biden’s collaboration with the Justice Department.
By contrast, the downside for Trump is immense. Wall’s letter not only lays out the scope of Trump’s recklessness to the extent it was known by May 10. It further invites consideration of the events that followed: Trump’s blocking the FBI’s access to the records that had been returned to the archives; the June 3 representation by Trump’s lawyers — in writing, in the context of responding to a May 11 grand-jury subpoena, and after representing that they had thoroughly searched records retained at Mar-a-Lago — that there were no more documents marked as classified on the premises; the subsequent surrender, also by Trump’s lawyers, of Mar-a-Lago
surveillance-camera video that
reportedly showed people breezing in and out of areas where Trump was storing his presidential records, apparently moving boxes around; and, finally, the seizure during the August 8 search of a significant amount of additional, highly classified information.
These revelations are condemnable. They provide a solid basis for Trump detractors to argue that the Mar-a-Lago search, though stunning and unprecedented, was justified — or at least not unreasonable.
For those of us who remain skeptical about whether the drastic measure of a search warrant was really necessary (especially given the FBI and DOJ’s evident lack of urgency in the months after Trump’s surrender of the 15 boxes in January 2022), these revelations require grappling with a hard question: Given that the former president was not responsibly securing the government’s most closely held intelligence, that he was trying to prevent the FBI from examining what he’d returned, that his lawyers were either misinformed about or lying about the classified information still retained at Mar-a-Lago, and that even the issuance of a grand-jury subpoena (with potential criminal penalties for noncompliance) had not succeeded in getting Trump to hand over the remaining classified information, what option short of a search warrant would have sufficed?
Meantime, some unsolicited advice to the former president and his apologists: If you are trying not to get indicted, the best defense is usually not a good offense. And it is never an offense that backfires.
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