The Truth About The Biden And Trump Document "Scandals."
Breaking down the legal standards for two situations that are distinct pursuant the Constitution.
Almost all of the news stories about former President Trump are hoaxes. There are not just untrue, but literal hoaxes. They are designed to push a broader Left wing governmental perceptive, one largely designed to eradicate Constitutional government in the United States and replace it with a more authoritarian form of top down control of the citizens. In almost all cases, Trump really is not the target. Instead, our form of Constitutional government is. The original “confidential document” story is a prime example of this phenomenon.
Before turning to the law the regarding former Presidents and their records, it is important to note that Presidents occupy a unique position on our system because the Supreme Court has determined that the power of the Executive Branch is vested in the office of the President. As with many things having anything to do with the Constitution, this distinction has been lost. As discussed below, it is critically important for any discussion when comparing the Trump and Biden document situations. For the moment, just note that any discussion which does not raise this critical distinction between the two men is suspect. You may find examples everywhere, but this one is as good as any:
You will recall that the original story was that Trump improperly took classified documents when he left the White House and stored them at his Mar-a-Lago Estate. The apparent suggestion by the Establishment and the Mainstream Media was that a President has no right to possess documents that contain “classified” markings. To this day, this appears to be the talking point of both our governmental institutions and the Press. Indeed, as evidence by the appointment of a Special Counsel, not only does a former President lack the right to possess documents marked as “classified” once he leaves office, but it is criminal to do so. Special Counsels are only appointed to investigate potential criminal conduct.
Anyone familiar with the Constitution and history should recognize that the premise is faulty because the Executive Branch is a co-equal branch of government under the Constitution and, therefore, Congress has no right to regulate that branch’s Chief Executive’s handling of documents. Until the scandal of the Nixon Administration, Congress had not attempted to cross this line and regulate Presidential records. However, in the wake of that historic event, Congress passed the Presidential Records Act in 1978 (the “PRA”). The PRA changed the legal ownership of the official records of the President from private to public, and established a new statutory structure under which Presidents, and subsequently National Archives and Records Administration (“NARA”), must manage the records of their Administrations.
Notably, the PRA provides for no criminal penalties, only civil ones. Since this is the case, the Media’s rush to reference Trump’s criminal liability and President Biden’s Attorney General’s appointment of a Special Counsel should strike informed Americans as odd. Indeed, The Washington Post ran a story a few days after the Mar-a-Lago raid detailing the history of the Presidential Records Act, but no where referencing a criminal penalty. It could not because none exists.
In fact, disputes between Presidents and the National Archives have occurred in the past and not once has it ever been suggested that it was criminal. There just is no basis for claiming that Trump’s dispute with NARA raises criminal concerns.
It is critically important to recall that this is what was occurring—the National Archives and Trump were engaged in a dispute over who had the right to possess documents relating to his Presidency. The National Archives possess this authority pursuant to the PRA. Put another way, if Trump could have violated some other law relating to Federal records, he would not have been dealing with the National Archives, but another Federal agency.
Of course, as with all things Trump, facts and the law rarely get in the way of persecuting the man. We wrote about this at the time of the FBI’s raid on Trump’s home, detailing how ridiculously improper the warrant was. To this day, the Left has been astonishingly honest that this is not about the Rule of Law, but about about satisfying their vengeance against “a pathologically lying criminal.” Rob Reiner went viral recently for stating this publicly:
In their quest for vengeance, the Left might have violated an old proverb—before you set out on revenge, first dig two graves. If Trump is indicted, he will absolutely make the co-equal branch of Government argument and challenge Congress’ ability to pass the Presidential Records Act in the first place. To date, Presidents have not seen fit to challenge the Act legally, but instead to negotiate disputes in private. The Biden Administrations unprecedented decision to criminalize what heretofore had been consider ordinarily may well be the downfall of the likely unconstitutional Act.
Which brings us to the Biden Administration’s other problem with deciding ignore the law and to criminalize Trump’s actions with respect to his Presidential records—the recent discovery that Biden took “confidential documents” with him when he left office. While most everyone has been focusing on the fact that this will make prosecuting Trump more difficult if Biden is not charged, the bigger problem for Biden is that when he took the records, he was a Vice President, and not the President.
Because only the President has been determined by the Supreme Court to possess the full power of the co-equal Executive Branch, Biden’s actions are not judged by the standards set forth in the Presidential Records Act, but by the many statutes that Congress has passed to regulate the conduct of all Executive Branch employees other than the President. Put simply, Biden, as Vice President, is treated no differently than a Secretary of State, a clerk in a governmental agency, or any other Federal employee when handling government documents—the President is.
As a result, Biden’s conduct under the law is not judged solely pursuant to the Presidential Records Act, which provides no criminal penalties. Instead, Biden’s possession of documents likely will be analyzed pursuant to laws such as 18 U.S. Code § 1924 — Unauthorized removal and retention of classified documents or material. It provides:
Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than five years, or both.
Biden has several problems based on the elements of the statute. Initially, as discussed above, a former President’s actions are judged pursuant to the standards set forth in the Presidential Records Act. A former Vice President’s action are not.
Just as importantly, as has been often noted, but mocked improperly by the Left, Trump, as President at the time he took so-called “classified” documents, had the power to de-classify them. Thus, even assuming this statue applied to Trump, and it does not, he could avoid prosecution by proclaiming that he de-classified the documents, thus taking them out of the universe of documents covered by this statute.
Just as importantly, 18 U.S. Code § 1924 references those that “remove documents or materials without authority.” Again, as President, Trump had the authority to remove any document he wanted. This is why laws such as 18 U.S. Code § 1924 do not apply to the President and why the Presidential Records Act was passed in the first place—as an attempt to deal with the unique situation of Presidents and their entitlement to the records of the Executive Branch.
This is not to suggest that Biden ultimately will be prosecuted. He may be. Alternatively, the Special Counsel appointed to investigate him may decide to take the James Comey route when investigating Hillary Clinton’s illicit possession of classified documents and decide no reasonable prosecutor would move forward. On the face of it, what Biden did appears to violate the statute. However, people in positions of power often are given special treatment. They should not be, but they are.
The main points here are that this whole “confidential document” scandal started as yet another Trump Hoax designed to aggravate Trump and to erode the system the Constitution created. The Left plainly prefers a system whereby some bureaucrat at the National Archives is at liberty to choose which former Presidents to harass, and now apparently jail, when he or she disagrees with that President’s document retention policy, or, worse, does not like the man for whatever reason. Leftists favor such a system because they know that Federal bureaucrats and high ranking agency employees are overwhelmingly Democrat, and increasingly highly partisan Democrats. They rightly believe that they will not be singled out under this system.
The remaining point is that all Leftist regimes, and we are increasingly becoming that or already are that, criminalize all behavior and permit those in the system to decide based on person preference which persons to prosecute. Students of history will recall Lavrentiy Beria, the most ruthless and longest-serving secret police chief in Joseph Stalin’s reign of terror in Russia and Eastern Europe, who bragged that he could prove criminal conduct on anyone, even the innocent:
“Show me the man and I’ll show you the crime.”
America’s Constitution was designed to prevent this type of inappropriate behavior by those in positions of power by requiring that all citizens be judged equally, and by laws that have equal application. Were the Constitution being followed at this moment, the “investigation” into Trump, as least as it pertains to keeping Presidential documents would have been quashed. He might not have the right under the Presidential Records Act to possess the documents he kept at Mar-a-Lago, but there is not crime here if the Rule of Law is followed.
That is why the Constitution has to go. Since the Left apparently believes that Americans would not stand for shedding the governing document suddenly, the slow erosion of its provisions continues. What we are witnessing with the Trump Document Hoax is yet another layer in that process coming off.
The Truth About The Biden And Trump Document "Scandals."
Do you know the difference between "perceptive" and "perspective"? (First paragraph)
You forgot one thing. NARA arranged the transfer of all the documents & moved them to Trump's house. NOT TRUMP! There's a NARA statement to that fact. They also spoke of doing the same with Obama's records. So, it's NARA that boxes them all up & transports them to where the President wants.