Posted originally on the CTH on April 3, 2024 | Sundance

Before getting into the weeds, here’s the big picture baseline.  All

documents and records created within the executive branch are created
for the benefit of the head of the Executive Branch, the president.

There is no entity, organization, assembly, institution, person or
individual, above the President of the United States. The president
holds absolute power and absolute immunity. Everyone within the
executive branch works at the pleasure of the president, and all work
products are created for his administration. This is the plenary power
of the president.

The
entire documents case in Florida rests on the principle that another
entity supersedes the president within the executive branch.  Some
unknown, unnamed bureaucracy can override the president and decide for
themselves what would be called a “presidential record” and what would
be called “classified information.”

Jack Smith, Norm Eisen (pictured left, red tie) and Andrew Weissmann
each argue that some other entity rests atop the president and can make
this decision.

Judge Aileen Cannon has not determined which constitutional argument
is correct, and has told the parties to create jury instructions both
ways. The Lawfare crew of Smith, Eisen and Weissmann are going bananas.

[…] Cannon’s
first scenario would allow the jury to make a factual determination
about whether a former president deemed a record to be personal or
official under the PRA. That is nonsensical – presidents are not allowed
to designate official records as personal ones, so there is no factual
issue for a jury to resolve.

A different set of laws govern the
classification process and the rules for handling highly sensitive
classified documents — not the PRA. They include Executive Order 13526. One of the authors of this column (Eisen) helped write that executive order. The 11th Circuit has already established that those rules fully apply to former presidents.

Cannon seems to think that the PRA
somehow supersedes the executive order and the rest of federal law
pertaining to the handling of classified materials. It does not. On the
contrary, the PRA defines “personal records” as “all documentary
materials … of a purely private or nonpublic character which do not
relate to or have an effect upon the carrying out of the constitutional,
statutory, or other official or ceremonial duties of the President.”
That cannot possibly include highly classified battle plans, nuclear
secrets and the other official documents at issue in this criminal
prosecution.

That rules out Cannon’s first
hypothetical. But as Smith points out in his filing, the second
alternative is just as bad. She made up a legal standard, asking both
sides to assume that Trump could have deemed a record personal by simply
not including it with the records transmitted to the National Archives
and Records Administration at the end of his term. If this were true,
the mere fact that Trump took the documents with him from the White
House would inherently turn them into personal records.

Of course, Trump leaped at this
interpretation, fashioning proposed jury instructions that would
inevitably result in his acquittal. But, as Smith noted, this approach
has no basis in the law — or the facts. Even Trump himself does not seem
to have considered classified documents personal after he left the
White House, as evidenced in an audio recording CNN obtained last year
in which Trump, during a conversation at his Bedminster, New Jersey,
estate in 2021, discussed documents remaining classified even though he
took them with him upon leaving office. Smith hits this point hard,
arguing that Trump’s position that records are personal was “invented”
when the controversy over the documents began to emerge in February
2022, over a year after Trump left the White House. (read more)