Listen to pretty much any of the idiocracy (members of the press designated by the ruling class to outsmart my chickens), and not a single one cared to look at the actual laws cited by the King’s lawyers (Biden’s attorney general) to indict Trump.
Nor did they care one iota to look at any of the cases that have interpreted the laws (believe it or not, Judges in other cases have interpreted these laws and explained what they mean). Nor did they ask why other Presidents, who have done the exact same thing as Trump, never got charged (not a political issue but an issue of interpretation of the applicable law-if prior Attorneys Generals-like his honor, the all-knowing, all-seeing Lord Barr who failed to prosecute Hillary Clinton for her possession and outright theft of top secret documents- did not prosecute former President’s for doing what Trump is charged with doing, does that not mean that the proper interpretation of the law is that Trump is not properly charged).
Well, here is a thought: why don’t we blaze a new trail and actually look at the laws being used to indict Trump. (Whoops! Be careful. Looking for stuff like the actual laws may get us blacklisted by …oh, who cares? My newest chicken is named Hunter. We will just say he did it. They will only slap his wrists, no matter what we say. And what little pain they will inflict will be fleeting-he doesn’t even have any wrists, so hah!)
1. THE ESPIONAGE ACT OF 1918: Trump is charged with violating 18 U S C 793e. This law was enacted in 1918 as a part of the World War 1 effort to capture and punish spies. It was upheld under the war powers act by the then Supreme Court (the same Supreme Court that said that sterilizing “the weak and feeble-minded” was necessary to purify the white race- a fact I add here to emphasize that what the Supreme Court said in 1918 probably would not pass muster today. Consider Plessy v Ferguson upholding racial segregation in schools, and Brown v Board of Education outlawing it).
Under section e, the law provides (with redaction of surplusage- sorry, my grandson told me to use that word; it means extra and largely unneeded words that lawyers add to statutes because they get paid by the word):
“e. Whoever having unauthorized possession of any document…relating to the national defense willfully communicates …(same) to any person not entitled to receive it…or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it…shall be fined under this title or imprisoned for not more than ten years or both.
My newest chicken, HUNTER, points out this brilliant thought: this whole statute turns upon
1.The key word “unauthorized; and
2. The key words “person not entitled to receive it;”
3. The key words “employee of the United States entitled to receive it.”
Astute and learned scholars might note: to prove that Trump committed a violation of the espionage act, the government must prove – beyond a reasonable doubt – that Trump’s possession of the subject documents was not “authorized”; that he showed them to a person not entitled to see them; and that he willfully refused to return them to the person-Government employee-who was “authorized” to possess them.
In analyzing this whole mess, two concepts are critical before looking at these elements:
This is a criminal charge. The Government has the BURDEN to prove-BEYOND A REASONABLE DOUBT- each element of the case asserted. That means if the jury has any doubt, they must acquit.
Second, because this is a criminal case, the verdict of the jury in federal court must be unanimous. Most likely, there will be either 6 or 8 jurors. If anyone says, “I don’t think so,” the Government loses.
With these thoughts in mind, take a look at the PRESIDENTIAL RECORDS ACT. (44 USC 2201-2209). Under this statute, there are two types of records, PRESIDENTIAL RECORDS, and PERSONAL RECORDS.
PRESIDENTIAL RECORDS: these are “documents…created or received by the President in the course of conducting activities which relate to or have the effect upon carrying out (his)…duties as the President. (44 USC 2201(2))
PERSONAL RECORDS: these are all documentary material…of a purely private or non-public character which do not relate to (his) duties …as President. (44 usc 2201(3)).
Under 44 USC 2202, all Presidential records belong to and are owned by the United States Government.
Question: who decides whether a record is PRESIDENTIAL or PERSONAL?
The National Archivist? Nope!
Attorney General Garland? or Barr?Nope!
Prosecuting attorney Jack Smith? Yea, right.Nope!
Under Article II of the United States Constitution, the President of the United States is the head of the military, is Commander in Chief, and by the admission of all legal scholars, is afforded total and complete control over all records. He and he alone decides what is a government record, what is a PRESIDENTIAL RECORD, and what is a PERSONAL RECORD. He does not derive his power in this regard from Congress. He obtains his power directly from the Constitution. And because his authority comes from the Constitution, Congress cannot deprive him of the power, cannot modify his power, and cannot regulate it. Neither can the Supreme Court.
While he is in office, the Presidential power under Article 2 to designate a document, Presidential or Personal, cannot be regulated by Congress. This means that he and he alone, without any regulation from anyone, defines what is a PRESIDENTIAL RECORD and what is a PERSONAL RECORD. When he leaves office, these designations remain as again; no one can go back and say that while he is in office, he categorized a record improperly.
To fully grasp this concept, it is a useless act to go back and look at 44 USC 2201(2) and (3). Why? Re-read what I just said. Congress has no right to tell the president what a PRESIDENTIAL RECORD is or what is a PERSONAL RECORD. Those provisions define non-binding categories on the sitting President. But they don’t constrain the President in any way.
In that regard, consider 44 USC 2203(b): “Documentary materials produced or received by the President, shall to the extent practicable, be categorized as Presidential records or personal records…”( In other words, Congress is saying to the sitting President, please tell us what is a Presidential record and what is personal?)
Under 44 USC 2203(c), the “President may dispose of those Presidential records…”(In other words, Congress is recognizing the President’s total control over all documents. He can even destroy them. That is his power under Article II. It’s not something Congress has any say in or control over).
Under 44 USC 2203(f)…”The President shall remain exclusively responsible for custody, control, and access to such Presidential records”( yea, just like I said. He has Article II power; he has unlimited power over all the documents and can do whatever he pleases with them. He can certainly decide if something will be called a Presidential record or a Personal record. And no matter what 44 USC 2201 (b) or ( c) says, his determination is final and complete. No appeal. No pointed-headed bureaucrat can overrule him by saying, “Wait, Mr.President, I have decided that you made a mistake on designating the subject documents. I am changing your designation and now making what you designated personal as presidential.)
Indeed, the archivist has no such power to change what Trump did while in office. His sole power is to take custody of records that Trump, while in office, designated as Presidential:
Under 44 USC 2203(g), “Upon conclusion of a Presidential term of office, the archivist …shall assume responsibility for the control, custody…of the Presidential records.
Consider: while in office, the sole determination of what is a Presidential record belongs to the sitting President. To fully grasp this simple concept, turn off the section of your brain that controls logic and reason. Turn on the part of your brain that focuses on the Power of the ruling elite. The question is one of power, not logic. Not statutory language. Nor reason and logic. Trump-while President- had the sole power to declare a record–any record–to be personal. The language of 44 usc 2201(b) and (c) is merely definitional but cannot overrule the decision of the Article II Presidential Exercise of Power.
With all this in mind, go back to the Espionage ACT of 1918. Under the Presidential Records Act, Personal records belong to Trump, and he is free to take them with him to his home after he left office. As such, his possession of his own personal records is not “unauthorized.”
Consider the following: prior court decisions have affirmed everything I just said.
The most famous one is the CLINTON SOX case.
In 2012, former President Bill Clinton was being charged with pretty much the same charges now being made against Trump. He took what many at the time felt were Presidential records-many marked “top secret”- and hid them in his sock drawer. Judge Amy Jackson ruled in Clinton’s favor for the very same reasons I set forth. In ruling that Clinton had not violated the law because he, while he was President, had designated the Documents in his possession as personal records, even though under 44 USC 2201 (b), they would best be described as Presidential records. She explained her confirmation of the Clinton decision that his records were all personal records, as follows:
“Under the statutory scheme established under the PRA(Presidential Records Act), the decision to segregate personal materials from Presidential records is made by the President, during the Presidential term, and in his sole discretion…Since the President is completely entrusted with the management and even disposal of the Presidential records…it would be difficult for this court to conclude that Congress intended he would have less authority to do what he pleases with what he considers his personal records…”
Of interest, she also ruled that the “penalty” for violating the Presidential Records Act was not criminal. The act only allowed the archivist to bring a civil action to obtain the records.
In another case, the Supreme Court ruled consistent with the Clinton Sox ruling. In United States Navy v Egan, 484 U.S. 518, the United States Supreme Court was asked to overrule the President in his exercise of his Article II, section 2 responsibilities:
Section 2
The President shall be the Commander in Chief of the Army and the Navy…
The issue presented was the authority of the President, under Article II, section 2-his authority as Commander in Chief, to issue security clearances to employees of the Government. In other words, does the President have the power to decide what records an employee can see and what records he cannot see? The Supreme Court held that under Article 2, section 2, the President has this power, and it cannot be overturned by an act of Congress. The Constitution itself confers the power and cannot be controlled by Congress or the Courts except in extreme circumstances. The Supreme Court said:
“As to these areas of ART. II duties, the courts have traditionally shown great deference to Presidential responsibilities…Thus, unless Congress specifically provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs…”
Conclusion: don’t think logic. Don’t think reason. Think Power. While in office, Trump has the power, under Article II, section 2, to, as Commander in Chief, designate any record he wants as a “personal record.” That the record he designated as personal looks and acts like a Presidential record as defined under 44 USC 2203 (b) makes no difference. He has the power to call it anything he wants and certainly the power to call it a personal record. If it is a personal record, then his possession is not “unauthorized” under the Espionage Act of 1918. The Presidential record act specifically confirms that he has the right to take his personal records with him when he leaves office. So far, Trump has affirmed to anyone who will listen that the records he took are all personal.
Looks like the Government sucks on this one. Especially when they have the burden to prove beyond a reasonable doubt and get a unanimous verdict from all jurors to affirm that the sitting President does not have Article II, section 2 powers.
Anxiety attack: How am I going to explain this to my chickens? My daughter says they will understand as they already understand that a rooster can do whatever he wants, whenever he wants. Don’t matter what anybody says.
Ok, so I just got to keep it clear for them: Trump is the rooster. He defines what happens in the coop. No pointy-headed bureaucrat can change that.
Anxiety attack 2: how do I tell them to stop chanting, “Let’s Go, Brandon.”
