Donald Trump Agrees He Is Living By Barack Obama’s Rules

I’ve been waiting for something like this: the moment where Donald Trump concedes that Barack Obama — Hawaiian birth certificate and all — will play a key role in decisions about his ridiculous claims about hoarding classified documents.

Midway through Trump’s bid to convince Aileen Cannon to reject DOJ’s motion for a stay of her injunction against using the documents marked with classification marks seized from Trump’s beach resort, he notes that the only power he ever had to classify and declassify documents was governed by an Executive Order signed by Barack Obama on December 29, 2009.

The Government does not contest—indeed, it concedes—that the President has broad authority governing classification of, and access to, classified documents. [ECF No. 69 at 10, 18 (quoting Dep’t of Navy v. Egan, 484 U.S. 518, 529 (1988))]. In fact, the Government advocates that “the protection of classified information must be committed to the broad discretion of the agency responsible, and this must include broad discretion to determine who may have access to it.” [ECF No. 69 at 18 (quoting Egan, 484 U.S. at 529)]. Congress provided certain parameters for controlling classified information but primarily delegated to the President how to regulate classified information. 50 U.S.C. § 3161. At the same time, Congress exempted the President from complying with such requirements. See id. § 3163 (“Except as otherwise specifically provided, the provisions of this subchapter shall not apply to the President . . .”).

President Obama enacted the current Executive Order prescribing the parameters for controlling classified information in 2009. See Exec. Order 13526 (Dec. 29, 2009). That Executive Order, which controlled during President Trump’s term in office, designates the President as an original classification authority. See id. § 1.3(a)(1). In turn, the Executive Order grants authority to declassify information to either the official who originally classified the information or that individual’s supervisors—necessarily including the President. § 3.1(b)(1), (3). Thus, assuming the Executive Order could even apply to constrain a President, cf. 50 U.S.C. § 3163, the President enjoys absolute authority under the Executive Order to declassify any information. There is no legitimate contention that the Chief Executive’s declassification of documents requires approval of bureaucratic components of the executive branch. Yet, the Government apparently contends that President Trump, who had full authority to declassify documents, “willfully” retained classified information in violation of the law. See 18 U.S.C. § 793(e); [ECF No. 69 at 9].7 Moreover, the Government seeks to preclude any opportunity for consideration of this issue.

7 Of course, classified or declassified, the documents remain either Presidential records or personal records under the PRA. [ed: See this post for how Trump debunked this claim. My emphasis]

Donald Trump concedes that Executive Order 13526 governed the classification and declassification of information on December 29, 2009. It continued to govern the classification and declassification of information on January 20, 2017. It continued to govern the classification and declassification of information on January 20, 2021. It continues to govern the classification and declassification of information today.

Donald Trump agrees that he never altered this EO. He agrees that he is bound by it still, unless the lawful President, a guy named Joe Biden, decides to change it.

This is a virtual capitulation to the arguments DOJ is making, including that the classification review of the documents he stole, the review ongoing as we speak, will be determinative of the classification status of those documents.

But it’s also a concession that he is bound by everything in the EO. There’s a whole bunch of things Trump concedes when he concedes that point (including that classified information must be kept secure).

One of those things, however, is that former Presidents — and the propagandists who work for them — still must get waivers to bypass Need to Know restrictions on classified information.

Sec. 4.4. Access by Historical Researchers and Certain Former Government Personnel.

(a) The requirement in section 4.1(a)(3) of this order that access to classified information may be granted only to individuals who have a need to-know the information may be waived for persons who:

(1) are engaged in historical research projects;

(2) previously have occupied senior policy-making positions to which they were appointed or designated by the President or the Vice President; or

(3) served as President or Vice President.

(b) Waivers under this section may be granted only if the agency head or senior agency official of the originating agency:

(1) determines in writing that access is consistent with the interest of the national security;

(2) takes appropriate steps to protect classified information from unauthorized disclosure or compromise, and ensures that the information is safeguarded in a manner consistent with this order; and

(3) limits the access granted to former Presidential appointees or designees and Vice Presidential appointees or designees to items that the person originated, reviewed, signed, or received while serving as a Presidential or Vice Presidential appointee or designee. [my emphasis]

This part of the EO — an EO that Trump, who served but no longer serves as President, agreed he is bound by — does not say that such access must be waived. It says it may be.

May. Not must.

Moreover, this waiver requires that before waiving the Need to Know rule, agency heads first determine, in writing, that giving former Presidents and their propagandists access to classified information, “is consistent with the interest of national security.”

Right there, in the middle of his filing arguing that maybe the classification decisions Joe Biden’s Administration is making right now can be overridden by a Special Master, Donald Trump agrees that the Barack Obama order he says he is bound by means not even he gets access to this information without a waiver, and even then, only if the agency heads that own the information say it won’t make the country less safe.

In his bid to claw back classified information he stole, Donald Trump admits he’s still living by Barack Obama’s rules. And those rules, the rules Trump admits he is bound by, say he can only even access this information if Avril Haines and Paul Nakasone and William Burns and Chris Wray say he can.

Go to emptywheel resource page on Trump Espionage Investigation.

51 replies
  1. Rapier says:

    I think if you consult Alice in Wonderland you will find his attorneys believe “it means just what I choose it to mean — neither more nor less.” In which case it doesn’t mean what Empty Wheel means. Judge Cannon is sure to agree.

    I don’t know why people think The Englightment and the Age of Reason still apply anymore since Kellyanne Conway canceled them

    • jhinx says:

      Kellyanne: Ok, so what. What the Democrats say works in practice… but does it work in THEORY? Gotcha liberal media and Democrats!

  2. Yogarhythms says:

    Ew, Ra,
    Age of Aquarius in 1960’s ended “secret squirrel” so even before Kellyanne’s wand wave tfg realized secrets are only secrets if he wants or chooses to keep them secret. Pinky swear.

  3. nedu says:

    Trump argues generally that, “A former President has an unfettered right to access Presidential records.” (D.E. 84, p.13ff.). And I expect that would be his specific response to your point here that E.O. 13526 Sec. 4.4(a)(3) controls access for someone who “served as President”.

    So, it’s worth taking a closer look at the basis for Trump’s claim that “A former President has an unfettered right to access…” You can see that he’s citing 44 U.S.C. § 2205(3) for the proposition.

    But note carefully the actual text of 2205, at the very top of the section, the initial clause, which states “Notwithstanding any restrictions on access imposed pursuant to sections 2204 and 2208 of this title”.

    Congress knows how to write, “Notwithstanding any other law.” But Congress did not write that broad phrase there. Instead, in 2205, Congress chose only to carve out an exception to the restrictions in 2204 and 2208.

    • earlofhuntingdon says:

      As you point out, Trump has preferential access to presidential records produced by his administration, not “unfettered” access. He and his authorized representatives are subject to various restrictions regarding the security and safekeeping of those records. He can’t just copy them willy nilly or take them home to read at bedtime.

      I’m beginning to think this response is just chum for his base, a distraction to his critics, and a monumental waste of time for the DoJ. That would be par for the course Trump always plays when litigating.

      • John Paul Jones says:

        In the definition of the term “Presidential records” we learn that the term “does not include any documentary materials that are … official records of an agency.” Most of the stuff with classification markings is likely just such official records of various agencies, so again, he doesn’t get access even under the PRA. (Disclaimer: IANAL.)

  4. Savage Librarian says:

    “Right there, in the middle of his filing…”:

    He and his Trusty counselors gave themselves the middle finger. Ha! That’s what sometimes happens when you live by the “I’m rubber, you’re glue” code of ethics. I’m so glad Obama lived rent free in Donald’s head. What a gem!

    Something equally bizarre once came unexpectedly to my aid, causing me to immediately win a huge concession which radically changed the trajectory of several lives. It still boggles my mind. That’s not to say there weren’t other issues and concerns that followed for some time after that. But, in the long run, it eventually all worked out.

  5. Peterr says:

    Testifying against yourself seems to be central to Trump and his legal team.

    In June, Christina Bobb signed a document saying that all documents marked classified were being returned. As the FBI was finishing their work to remove documents from Mar-a-Lago, Bobb signed a document saying that among the items seized under the search warrant were documents marked classified.

    It would be nice if Judge Cannon would ask Ms. Bobb to explain this apparent contradiction, under oath.

    I also want a pony.

    • Peterr says:

      Alternatively, it would be nice if Bratt pointed out these two affirmations by Bobb, and ask that Judge Cannon remove Bobb from the case until this contradiction can be resolved, as it would appear that Bobb is either a witness to a crime or a conspirator in a crime.

  6. Paulka says:

    Apparently, in this response, Trump does not assert he declassified the documents, but claims he HAD unrestricted authority to do so. Then he uses slight of hand to say it is essentially unreasonable to assume he hadn’t declassified them. Despite any and all actions that occurred post 1/20/21. Just an odd argument, though likely logical from an attorney’s perspective, meaning it is just something to argue (and delay) about.

    • Sheeshka says:

      He can’t claim he declassified as that is false and would be yet another Federal crime. They are trying to be crafty.

      [Welcome back to emptywheel. Please use the same username each time you comment so that community members get to know you. This is your second user name; you commented last as “Maxine” in case you’ve forgotten. Thanks. /~Rayne]

  7. Paulka says:

    Can someone confirm my observation of the argument that Trump is making?

    Is he arguing that he can classify a document top secret and have that document classified as Presidential Record (or Personal Record) and submitted to the NARA and the incumbent administration can’t look at it? That seems, ummm, odd from a national security standpoint.

    • nedu says:

      The overall thrust and tenor of Trump’s arguments reflect the fact that he has two essential legal hurdles to overcome: First, the grand jury subpoena. Second, the warrant execution.

      Given the sheer height of those hurdles, it doesn’t surprise me at all that an astute observer might perhaps discern within his arguments a certain quality of… umm, shall we say… ‘schizophrenia’.

      To more directly respond to your question, though, my answer would be ‘no’. I don’t think I’m quite seeing what you’re apparently seeing. What I see is that even Trump’s lawyers don’t think they’ve got a sustainable executive privilege claim over personal records.

  8. Patrick Ryan says:

    Trump’s position on this issue, as with everything else, is to flaunt the rule of law. His behavior on nearly everything is reckless, feckless, and cynical. So much so that the law can barely contemplate that such a point of view is reasonable or foreseeable. Yet when he’s called to answer for such outrageous conduct he and his lawyers drape themselves in due process & fair play. It’s infuriating and thus far he’s gotten away with so much shit. As someone who reveres the rule of law this perversion if it leaves me deeply troubled. I pray he’ll meet his comeuppance but I’m not so sure.

    • Doctor My Eyes says:

      Thanks for saying that. This whole queering of the law is deeply painful, unsettling and disorienting. I find humor in fascist logic, which is to say toddler logic, but that doesn’t stop its scaring the crap out of me.

      As I’ve said before, all the time wasted refuting nonsense—it’s time spent not adding to humankind’s knowledge. I’m sure Marcy could be making a lot of helpful contributions with the time she spends refuting twaddle.

    • Doctor My Eyes says:

      Also too, I don’t revere the law, but I count on it to, among other things, protect me from exploiters like Trump.

    • LeeNLP says:

      My NAL POV: I’m hoping this all turns out to be a stress test for the rule of law in this country, one in which the rule of law prevails and leaves a trail of experience and case / statutory law that efficiently neutralizes similar attacks in the future. Like a good vaccine.

  9. Doctor My Eyes says:

    I feel sorry for Me. EW. I’m sure he’s never won an argument with his wife, As usual, this damning point seems obvious after Marcy points it out.

  10. SMF88011 says:

    I just saw a report that the DOJ subpoenaed approximately 30 people in Trump’s orbit in regards to the January 6th probe. The walls are closing in on Trump. I wonder just how well he is sleeping at night now.

  11. earlofhuntingdon says:

    Perhaps the most nauseating argument in this response, in part because it is so obsequious in praising Cannon, is in Section V.

    As this Court correctly observed, a criminal investigation of this import – an investigation of a former President by the administration of a political rival – requires enhanced vigilance to ensure fairness, transparency, and maintenance of pubic trust.

    That might have sounded less noxious in the original Brazilian Portuguese. In essence, Trump argues that a former president – in the virtually novel circumstance of his criminal investigation – has an equally unique interest in protecting his reputation, and that the general public (that is, Trump’s supporters), shares that interest. In Trump’s eyes, that would authorize a court to restrict a criminal investigation, based on the unsupported allegation that it might be fatally biased.

    The argument ignores that it is settled law that a court, sitting in a civil matter, cannot restrict a separate criminal investigation by the government. It is obscene to argue that the public trust in government is enhanced – rather than undermined – when courts carve out special protections for a would be criminal defendant, based solely on his past employment in a position of public trust. Trump’s response shouts that, yes, This One Man is Above the Law.

      • quickbread says:

        Is it possible that MG doesn’t actually need the documents seized from MaL to build an airtight criminal case against Trump because he already has enough other evidence? And is it possible that the search warrant was more about getting the classified documents back securely to start the appropriate intelligence community follow-ups?

        I keep thinking about that secret trip MG took to Ukraine. The IC surely has been onto Trump for years, and there must be records of at least some of his misuse of classified data going back far earlier than the August MaL search.

    • earthworm says:

      is there a means by which DoJ will be able to end-run the SM process (so therefore concedes agreeably to Dearie because it will become irrelevant)?

  12. earlofhuntingdon says:

    Trump argues that the former president’s reputational interests are so sthpecial, that the court must take special action to protect him against leaks – the black beast Trump has fought his entire career. I wonder how the DoJ could respond with the least snark, were it to point out that leaks to date have come from Trump himself and Cannon’s court.

  13. Bay State Librul says:

    Per Berman’s book, Barr should be subpoenaed by the Senate Judiciary Committee and explain his corruption

    • Molly Pitcher says:

      So much for the Bill Barr Bleach Tour. Berman’s book, vetted and approved by DOJ, will hopefully finish what shred of reputation that Bill Barr has been trying to sanitize lately.

      Berman was interviewed by Rachael Maddow this evening, on the eve of the release of his book.

    • TXphysicist says:

      Indeed, the senate judiciary committee announced their intent to investigate earlier tonight.

      It seems increasingly likely that Barr waited about a month after the 2020 election was called for Biden to make the calculation as to whether Trump et al.’s “legal” strategy for sabotaging the electoral college tally would succeed. It was basically in the public domain, after all. Only then did he simultaneously announce that there was no evidence of widespread voter fraud and tender his resignation. If he was willing to pervert DoJ with political taint to the extent alleged by Berman, every decision and statement he’s made after the election is probably self-preservation and reputation laundering.

      Hat’s off to Molly; Maddow’s one of the few TV reporters I still approve of:

      Looking forward to Marcy’s take on this, but geeze, take your time, EW, news cycle is on super-‘roids at the moment. Actually, I wouldn’t be surprised if EW managed to string much of this together as it unfolded by studying the evolution of the language in public DoJ court filings and Berman’s statements when he was fired.

      I’d love to be privy to whatever dynamic might exist between Trump-sympathetic holdovers submitting arguments up to Garland and Garland’s rejections or revisions for this Mar-a-Lago docs case. I, too, want a pony.

  14. David says:

    So wait. If Trump’s argument is that he (maybe) declassified the documents on his way out the door while he was still president, then this argument about a former president having access to classified documents is moot, because by then the documents were not classified. Am I wrong?

    • earlofhuntingdon says:

      Trump is not, in fact, arguing that he declassified any specific documents. He’s arguing he had the authority to do it, muddying the water, and leaving to a later date whether he attempted to declassify anything.

      He’s doing that, in part, because making false claims to the court creates serious additional legal exposure for him, which is also one reason he’s not submitting affidavits of fact, signed under oath and penalty of perjury, to support any of his claims.

      The declassification argument is also, in part, a red herring. The criminal statutes whose violations the FBI is investigating do not require that the subject documents be classified. The documents need only contain NDI. Trump is avoiding those issues and Cannon is letting him do it.

      • TXphysicist says:

        I agree that the classification issue is a red herring primarily designed to help run out the clock, but do you think he intends to attempt throwing Meadows or someone like Cassidy Hutchinson under the bus by claiming “A verbal order was issued to FPOTUS’s staff that any and all material taken to the White House personal residence was to be declassified, and the FPOTUS staff failed to follow Mr. Trump’s orders.”?

        He’s floated the first part of that quoted statement on Truth Social (among many others), but does it contradict anything else he’s claimed in court besides e.g. Bobb’s admission that he did, in fact, possess classified documents?

        “We’ve had one perjury, yes, but what about second perjuries?”

      • David says:

        Mr. Earl, it’s nice to lay that all out. But it doesn’t answer the question. Empty Wheel writes, “former Presidents…still must get waivers…on classified information.” Again, what if Trump argues, even to muddy the waters, that the documents were not still classified by the time he was a former President?

        Or perhaps Marcy Wheeler answered that question when she wrote, “the classification review of the documents he stole, the review ongoing as we speak, will be determinative of the classification status of those documents.”

        [Welcome back to emptywheel. Please use a more differentiated username when you comment next as we have several community members named “David” or “Dave.” I’m sorry I haven’t asked this before but you may have been confused with another “David.” Thanks. /~Rayne]

        • bmaz says:

          It is Emptywheel. One word.

          And, by the way, differentiate your handle. There are a million people named “David” here. People are entitled to know which one they are dealing with.

        • earlofhuntingdon says:

          Under the relevant statutes, Donald Trump is not entitled to possess these presidential and/or federal records. He has preferred access to presidential records, when he, as a private citizen, complies with the rules regarding their safekeeping.

          But whether he violated any of the three statutes cited in the search materials does not depend on the classification of these documents. It depends on whether they contain NDI.

        • nedu says:

          With reference solely to the three statutes cited in Attachment B to the Search Warrant (FLSD 9:22-mj-08332-BER DE 17; p.4), those three statutes being 18 U.S.C. §§ 793, 2071, [and] 1519, it appears to me that “whether they contain NDI” is only an element of 793.

          (Of course, you are indeed entirely correct that the administrative security classification status of a document is a separate question of fact from –merely pertinent and relevant evidence as to– whether a document contains national defense information as contemplated within 793.)

  15. tinao says:

    Hatching Eggs
    i sent you an olive branch on Easter donny
    scuttle but was…
    you hated people who’s parents loved them.

  16. Another dude from G-ville says:

    What was the reason Obama made this EO? Was there some Bush/Cheney shenanigans going on with over classifying OLC memos or something?

  17. The Old Redneck says:

    I think some of the comments are missing the point. If you follow the Trump filings, they really are the legal equivalent of Steve Bannon’s “flood the zone” strategy. Don’t be surprised if they argue something completely opposite before Cannon next week, or on appeal. The point is to create as much turmoil and delay as possible while sprinkling in catchphrases for the base.
    Dealing with this level of cynicism in real life is harder than it looks. Trying to pin them down and refute their legal arguments is, as the saying goes, like trying to nail Jell-o to a wall.
    No surprise we’re seeing this from Trump’s team. This strategy has worked spectacularly well for them in the past.

  18. Rugger9 says:

    I see that everyone agrees on retired FISC judge Dearie as the Special Master even if the scope isn’t sorted out yet. If this does get yanked out to the DC circuit would the SM be off the table?

    Also, some of the UT GQP types were pitching a fit that this was a biased judge and any of a hundred alternatives were better, but let’s remember that Individual-1’s team selected this guy.

  19. earlofhuntingdon says:

    Prince, um, King Charles has this natural, winning way with people. During a church service for his departed mum, he gave notice to 100 of his 101 household staff at Clarence House that they would be fired, made redundant. And that was after learning that he will not have to pay the normal 40% inheritance tax. I wonder what he’s like on a bad news day.

    Princess Diana could probably have attested to the smoothness with which he makes transitions. That the Met is rounding up the usual suspects, who hold up signs of protest, or even a blank sheet of cardboard, near a royal is not helping his image, which is pretty much all the royals have.

    I hope Charles Rex learns to be a little more nimble and to let the little stuff go, but at 73, the odds are not with him.

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