Why Trump’s Lawyer, Evan Corcoran, Says Joe Biden Couldn’t Violate 18 USC 1924

My Twitter feed continues to be inundated by a bunch of experts on the latest talking point telling me why Joe Biden violated the law.

He may have. We don’t know the circumstances surrounding the documents found at his home. Based on what we know, it’s far less likely that Biden broke the law than Trump. But we don’t know.

Virtually all those parroting the latest talking point are misunderstanding the likely law in question — 18 USC 793e, the same law in question with Trump — and how classification works with a former President or Vice President.

Maybe I’ll get into that at more length in days ahead, but for now, I wanted to lay out what Trump, in the voice of his lawyer Evan Corcoran, says about whether Biden could be charged.

Corcoran addressed many of the questions my Twitter experts have shared in a letter sent to Jay Bratt, DOJ’s head of counterintelligence, last May.

First, Trump — in the voice of Corcoran — says if a former President (a Vice President is also a Constitutional Officer) has voluntarily returned documents to the Archives, there should be no leaks about it.

There have been public reports about an investigation by DOJ into Presidential Records purportedly marked as classified among materials that were once in the White House and unknowingly included among the boxes brought to Mar-a-Lago by the movers. It is important to emphasize that when a request was made for the documents by the National Archives and Records Administration (NARA), President Trump readily and voluntarily agreed to their transfer to NARA. The communications regarding the transfer of boxes to NARA were friendly, open, and straightforward. President Trump voluntarily ordered that the boxes be provided to NARA. No legal objection was asserted about the transfer. No concerns were raised about the contents of the boxes. It was a voluntary and open process. Unfortunately, the good faith demonstrated by President Trump was not matched once the boxes arrived at NARA. Leaks followed. And, once DOJ got involved, the leaks continued. Leaks about any investigation are concerning. Leaks about an investigation that involve the residence of a former President who is still active on the national political scene are particularly troubling.

So Trump, in the voice of Corcoran, should be outraged that CBS broke this story before the White House or Attorney General revealed it.

Corcoran says that those vested with constitutionally-based authority to classify and declassify documents have unfettered authority to declassify documents, an argument that Trump still pretends he hasn’t waived both before at least three courts, SDFL, the 11th Circuit, and SCOTUS.

(1) A President Has Absolute Authority To Declassify Documents.

Under the U.S. Constitution, the President is vested with the highest level of authority when it comes to the classification and declassification of documents. See U.S. Const., Art. II, § 2 (“The President [is] Commander in Chief of the Army and Navy of the United States[.]”). His constitutionally-based authority regarding the classification and declassification of documents is unfettered. See Navy v. Egan, 484 U.S. 518, 527 (1988) (“[The President’s] authority to classify and control access to information bearing on national security … flows primarily from this constitutional investment of power in the President and exists quite apart from any explicit congressional grant.”).

Now, in reality, the authority of the President is not entirely unfettered. As we discussed last fall, nuclear documents require additional people to declassify.

But here’s the thing: There’s good reason to believe that the Vice President has the same authority to declassify documents that the President does.

To the extent that classification is constitutionally tied to Article II authority, it is governed by Executive Order. The Executive Order that governed classification for the entirety of the Trump Administration, and still governs classification, treats the Vice President on par with the President. The EO that governs classified information gives the Vice President the same original classification authority it gives the President, which is where the authority to declassify comes from.

(a) The authority to classify information originally may be exercised only by:

(1) the President and the Vice President;

The language on post-tenure access (which Trump later invoked in arguments before the 11th Circuit) also applies to the Vice President in the same way as the President.

(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:

[snip]

(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.

Biden could access stuff from when he was Vice President, but he’d have to do so at the Archives and get a waiver first (a waiver that Biden had after his term but Trump, because of a decision by Biden, did not).

Now, to be clear, none of this has been tested. Much of this language is a legacy of changes in a prior EO that Dick Cheney oversaw in March 2003, which were key in the Valerie Plame investigation.

Some of that is covered in this post I did in 2017, in which I asserted that Mike Pence had declassification authority.

But the fact of the matter is that Joe Biden could say, if he were ever charged, that his understanding is that his authority to classify and declassify as Vice President was the same as the President’s, and over the entire four years of the Trump Administration, Trump did nothing with his unfettered authority to change that (nor has Biden since).

In reality, Trump didn’t declassify these documents, nor did Biden. Trump has now waived his opportunity to claim he declassified these documents legally repeatedly. (Biden could have legally declassified them when he found them; instead he returned them to the Archives.)

But there’s good reason to believe that Corcoran’s arguments about Trump — for the little they’re worth — would apply equally to Biden as to Trump, thanks, in part, to Dick Cheney.

How about them apples, huh?

By far the most interesting argument Corcoran makes, though, is that the statute that most Twitter experts think is at issue, 18 USC 1924, cannot apply to the President, because the President — like the Vice President — is not an “officer” appointed by the President.

(2) Presidential Actions Involving Classified Documents Are Not Subject To Criminal Sanction.

Any attempt to impose criminal liability on a President or former President that involves his actions with respect to documents marked classified would implicate grave constitutional separation-of-powers issues. Beyond that, the primary criminal statute that governs the unauthorized removal and retention of classified documents or material does not apply to the President. That statute provides, in pertinent part, as follows:

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. 18 U.S.C. § 1924(a).

An element of this offense, which the government must prove beyond a reasonable doubt, is that the accused is “an officer, employee, contractor, or consultant of the United States.” The President is none of these. See Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 497-98 (2010) (citing U.S. Const., Art. II,§ 2, cl. 2) (“The people do not vote for the ‘Officers of the United States.”‘); see also Melcher v. Fed. Open Mkt. Comm., 644 F. Supp. 510, 518-19 (D.D.C. 1986), aff’d, 836 F.2d 561 (D.C. Cir. 1987) (“[a]n officer of the United States can only be appointed by the President, by and with the advice and consent of the Senate, or by a court of law, or the head of a department. A person who does not derive his position from one of these sources is not an officer of the United States in the sense of the Constitution.”). Thus, the statute does not apply to acts by a President. [my emphasis]

Corcoran made what could be a grave error with this legal analysis, which I’ll get to, but it’s not necessarily in his read about Constitutional officers.

In fact, DOJ seems to agree with Corcoran that Trump’s actions — taking classified documents home at the end of his term and keeping them — are not covered by this law. It was not among the crimes for which they had demonstrated probable cause on Trump’s search warrant affidavit.

It may be DOJ believes that because they agree with Corcoran, that Constitutional Officers who are elected directly by voters are not subject to this law.

It may also be that they believe that because it is routine for Presidents and Vice Presidents, when leaving office, to remove their papers from their official residences and offices and then sort through the stuff they have to send to the Archives. A CNN report describes that Biden, like Trump, didn’t wrap up his office until the last minute (though for different reasons — Trump didn’t because he was still trying to cling to power, whereas Biden didn’t because he was still working). The result was the same, though: the process was rushed and disorderly.

That is, it is possible that the removal of documents at the end of an Administration is not, per se, considered criminal because of how White Houses transition.

Whatever it is, there is nothing about the known fact set about Biden that would make this law apply to Biden if it did not with Trump. Both are believed to have retained stuff they took with them when they left their offices in a hurry.

If 18 USC 1924 cannot apply to Trump, like Evan Corcoran said, then it cannot apply to Biden.

I said, above, that Corcoran may have made a grave error in his analysis. That’s because he didn’t consider whether 18 USC 793, the law we know is under investigation, could apply to a former President (or Vice President). And that appears to have led him to give Trump really bad advice, allowing him to refuse to give back classified documents when asked.

That is a crime.

Taking classified documents unknowingly is probably not a crime, especially for a President or Vice President. Refusing to give them back may well be. That’s the question before Jack Smith, as well as the obstruction question. That’s probably the question before Robert Hur.

How about them apples, huh?

There’s one more interesting thing Corcoran said in his letter. He demanded that DOJ adhere to the White House contact policies that were routinely violated under the Trump Administration.

(3) DOJ Must Be Insulated From Political Influence. According to the Inspector General of DOJ, one of the top challenges facing the Department is the public perception that DOJ is influenced by politics. The report found that “[o]ne important strategy that can build public trust in the Department is to ensure adherence to policies and procedures designed to protect DOJ from accusations of political influence or partial application of the law.” See https://oig.justice.gov/reports/top-management-and-performance-challengesfacing-depatiment-justice-2021 (last visited May 25, 2022). We request that DOJ adhere to longstanding policies and procedures regarding communications between DOJ and the White House regarding pending investigative matters which are designed to prevent political influence in DOJ decision-making.

He’s not wrong that those contact policies should be upheld. And whatever else you think about Merrick Garland’s decision to appoint for John Lausch and then Robert Hur to investigate this, the necessity to uphold contact policies, to which Garland has (as far as is public) adhered to rigorously, is a really good reason to appoint a Special Counsel (and, for that matter, for the White House to be very reserved about its public comments). Trump’s favorite way of violating the contact policy was to Tweet something that would, fairly routinely, be followed almost immediately by DOJ taking action, including on criminal cases (most notably with Roger Stone’s).

Indeed, Biden’s people have said that one reason they have not issued more public comments was in an attempt to avoid even appearing to influence the process.

They should revert to that stance, in my opinion, and point to Evan Corcoran’s letter as authority to do so.

Evan Corcoran said a lot of things. He’s not a national security expert though, so if I were Biden, I wouldn’t rely on it.

But we should be able to rely on his argument that Trump doesn’t think that Biden should be charged, at least not with 18 USC 1924.

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32 replies
  1. NatlSecCnslrs says:

    They’ve made this “POTUS and VPOTUS aren’t officers” argument before and it’s pretty much BS.

    Interestingly enough, one of the nails in the coffin of that argument was driven by Trump himself, when he insisted that he was an officer of the government for purposes of the Westfall Act, so that DOJ could step in and dismiss the E. Jean Carroll case. In that case her lawyers argued that he wasn’t covered and DOJ—on his behalf—said that he was, and DOJ won.

    So, as is so often the case, if he hadn’t tried to abuse his office to claim immunity against calling her a liar, he’d be on stronger ground saying that he wasn’t covered by 1924. But as he’s incapable of thinking about more than 5 seconds into the future, he’s perpetually hanging from a large assortment of petards.

    • Spencer Dawkins says:

      But as he’s incapable of thinking about more than 5 seconds into the future, he’s perpetually hanging from a large assortment of petards.

      I have a colony of cats living in and around our carport, and Trump is more feral than all of these cats put together.

      Sheesh, the music never stops with this guy, does it?

    • WSH4 says:

      I don’t think anybody would hang from a petard. I had to look it up once after I used the phrase “hoisted on my own petard,” and realized I didn’t know what the hell I was saying. So it turns out a petard is a small bomb. To be hoisted on your own petard is to be blown up by your own bomb. Per Wikipedia.

      All of which is to say I’d love to see Trump hoisted by his own petard.

      • John Herbison says:

        Hoisted by his own petard comes from Hamlet, Act 3, Scene 4.

        Did you hear about the fellow who complained that he didn’t like Shakespeare because his work is too full of clichés?

      • eyesoars says:

        Not necessarily a small bomb. These were typically placed in tunnels under a wall or other fortification before detonation, and intended to create a breach for soldiers to attack. A ‘mine’ (in the military sense) as well as the traditional hole-in-the-ground variety.

    • LeftsidePortland says:

      I thought one “hoisted on their own petard” had “filled their cloaks with farts”? (see “bomb” above)

      srsly.

      Just glad that I could help maintain the elevated level of discourse on this site.

  2. John Paul Jones says:

    Given that much of the media commentary and tweeting seems to be comparing apples to oranges, I love the repeated invocation of the first fruit in this article.

    As always, clear, concise, and a pleasure to read. Indeed, often after reading a post, I feel (briefly) much smarter. Thanks.

  3. Tom R. says:

    I find it interesting that he was an 𝐞𝐦𝐩𝐥𝐨𝐲𝐞𝐞 at the time he allgedly defamed E Jean Carroll. In particular, he is covered by the tort claims act, which very specifically applies to 𝐞𝐦𝐩𝐥𝐨𝐲𝐞𝐞𝐬. This was certified by Billy Barr and upheld by the 2nd circuit.

    Yet somehow not an 𝐞𝐦𝐩𝐥𝐨𝐲𝐞𝐞 when it comes to absconding with TS/SCI documents.

    • Ben R. says:

      Although a fair point, here’s a valid counterargument: criminal statutes have a rule of lenity, which means any ambiguity in the statute needs to be applied in favor of the defendant. Such a rule does not apply to other statutes, so it’s possible employee would include the president and vice president in other statutes and not in a stricter application in the criminal ones

      [Welcome to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. Thanks. /~Rayne]

  4. David F. Snyder says:

    So does Corcoran’s bad advice give Trump an out on the illegal retention (and possibly the obstruction)? At least, there seems to be wiggle-room for Team Trump to argue that he had no criminal intent, that his actions were based on piss-poor legal advice and, “how could I be obstructing when my lawyer said I could keep the remainder of the documents?”. But then, IANAL, so straighten me out on this point.

    • Tom-1812 says:

      IANAL either but I think that if young Ms. Cassidy Hutchinson could recognize when she was getting bad legal advice and had the wit and moral sense to know it was time to get another lawyer, then the older and supposedly worldly-wise man of business Donald J. Trump should have known when he was getting his ample ass in a legal crack and then taken appropriate evasive action.

  5. Cheryl Rofer says:

    Marcy, thanks for unscrambling all the legalese and Trumpian obfuscation thereof, but it comes down to one practical point: There are procedures for declassifying documents and, since classification is essentially rules for handling particular classes of documents, those procedures and their results need to be known to the appropriate people. The law about taking classified documents has always been fuzzy, and we’ll see how that goes.

    Another central point: There’s a difference between admitting you’ve found the documents in your possession and fighting the process the whole way.

    • emptywheel says:

      Yes, I think the difference between returning them (and NOT choosing to declassify them instead) and fighting the process — as well as using the classified docs in the interim — is the key difference. Mostly this post attempts to point out that not even May 2022 Trump agrees with January 2023 Trump’s claims about Biden.

      • GlennDexter says:

        Of course we don’t know and haven’t been told the content or classification of materials discovered by Biden’s team but I wonder if empty folders like those found at MAL and knowledge of what their contents may have been is important to the DOJ.

  6. viget says:

    I know I brought this up in the other thread, but regardless of what you think about 1924, is it not time-barred in this case?

    The retention took place in 2017. That’s more than 5 years ago. I don’t see why the SoL would be tolled here, unless someone’s going to argue that Biden was in an ongoing conspiracy to retain the documents?

  7. Cody says:

    ** I’ve approved this comment as an example to the EW community of the kinds of poorly-informed trollery we’re getting. / ~Rayne **

    It’s beyond amazing. Yes the Vice President could possibly use that end around (ohhh I’m a Constitutional Officer) to declassify documents, but it would he like saying Sheriffs can too since they’re Constitutional Officers. Except chain of command. Yes a VPOTUS could do it WITH the POTUSs orders. No. No VPOTUS could declassify documents unilaterally. So your entire argument is Obama said it was OK? Seriously. This is the neverending dishonesty. Read the US Constitution. It trumps all laws. I’m no Trump lover but he WAS POTUS. Hilary, James Comey and Biden were never POTUS. So your entire argument could fly IF OBAMA ordered Joe to take classified docs to his vette garage. It’s just garbage. POTUS is top dog. The Founders were worried we installed a new Kingship. A Vice President is just that a Vice President. He cannot declassify documents without the Presidents ok. Disingenuous arguments that laws in violation of the Constitution matter aside, just the basic common sense prevails to show that to a 5th grader. A President is the Executive Branch. A Vice President is Preident of rhe Senate unless POTUS becomes unable to perform his job. Which day was Obama deemed incompetent or gave Joe authority to declassify? Vice Presidents, Directors of the FBI and Presidential candidates were NEVER POTUS. Trump.actually was. He had every power under the Constitution. He was CINC and HEAD Officer of the federal law enforcement apparatus. Joe never was. Well written and presented article. Too bad it was written so dishonestly.

    • Rayne says:

      While the word “officer” or its plural appears 17 times in the U.S. Constitution, “sheriff” is never mentioned.

      See: https://constitutioncenter.org/the-constitution/full-text

      Cody is an apparent adherent of the “constitutional sheriffs” movement, which was launched by an Oath Keeper in 2011. The underlying premise, that sheriffs are constitutional officers, is nonsense.

      See: https://www.law.georgetown.edu/icap/wp-content/uploads/sites/32/2022/09/Constitutional-Sheriffs-Fact-Sheet.pdf

      I won’t even touch any of the other idiocy in Cody’s comment which furthers the Big Lie. It’s also apparent that while Cody thinks community members here need to read the Constitution, Cody has not read the 14th Amendment’s Section 3.

      Buh-bye, Cody.

      • pdaly says:

        Thanks, Rayne, for pointing this out. I had not heard of the “constitutional sheriffs” movement and would not have realized Cody’s “sheriff” comment was more than just uneducated blathering. We are facing a multi-front attack on democracy from within.

        I’ve noticed some conservatives in social media like to declare that we are a “republic, not a democracy.”

        While the USA is both, a representative democracy, in the wake of Jan 6’s insurrection and with the legally dubious “Independent State Legislature Theory” floating about, I hear the phrase “we’re a republic not a democracy” as another right wing dog whistle signaling it is sometimes just and right to ignore the results of the popular vote, to put a restraint on democracy.

        • Rayne says:

          This is why I didn’t want an educational opportunity like Cody’s trollery to go by without discussion. We get a LOT of crap — last week some bottom feeder attempted to post a phishing attack appealing to our landscaping business here at EW — but this one provided insight into thinking some of the January 6 perps shared along with the kidnap-murder conspirators who wanted to remove MI Gov. Whitmer.

          These folks didn’t learn what the overwhelming majority of us learned in K-12 public school about the Constitution and government. They’ve acquired an ideology which undermines democracy, republic or not, disregarding the primacy of one-citizen-one-vote and majority rule with minority protections.

          They also believe in extrajudicial execution — all the more reason for this democracy to operate to its values and ensure accuracy and thoroughness over expediency.

          • Tech Support says:

            Since you made the point of forwarding it through, I made the point of forcing myself to read it. I know I’m supposed to be learning about some of the bogus arguments being espoused by conspiracists so that I can deal with them more effectively when encountered elsewhere, but I kept being distracted by all the references to Obama Obama Obama.

            It’s funny, right? In an article that mentions multiple Presidents and VPs over the last 20 years but *never once* mentions Barack Obama, our guy “Cody” sees Obama everywhere. It’s almost as if his criticisms of Biden and his defense of Trump are somehow secondary to a bitter, race-based animus to a guy who left office seven years ago.

            • Rayne says:

              Completely misses the fact Obama’s EO authorized the VP to have classification + declassification powers, and the EO itself extended Dick Deadeye Cheney’s insistence that the VP was an extension of the POTUS (the barnacle branch, as Marcy coined it way back in the day).

              The “constitutional sheriffs” movement is simply another facet of white supremacy — overt in its attempt to snag power, covert in its racism.

        • Ginevra diBenci says:

          PDaly, I too hadn’t heard about “constitutional sheriffs” until I started digging into crime reports (mostly online outlets) from what its citizens call Cowboy Country (I also did not realize cowboying was such a serious industry nowadays).

          Cowboy Country seems to extend wherever livestock roams and guys ‘n’ gals can ride horses in western gear–from California to Kansas, even rural Ohio. Its denizens seem fiercely independent; their approach to law-and-order consciously emulates that of the Old, Wild West, or rather the version of it they’ve chosen. The concept of constitutional sheriffs has a natural appeal in this realm.

    • Super Nintendo Chalmers says:

      That’s a straw man argument. What EW is arguing is that the 2009 memo on CLASSIFICATION, which the Drumpf (mal)Administration was still using, DOES give VPOTUS the authority to declassify. Moreover, EW maintained that Mother Pence, in 2017, had declassified documents.

      • Rayne says:

        Don’t waste your time arguing with Cody, who will not be back. Instead, digest the fact there are people like this willing to spout this crap and they’re walking among us.

        Cody’s apparently in Washington state, for example (or spoofing that he is). An overt “constitutional sheriff” adherent is a county sheriff in my state, and I’m sure there are quite a few more. We need to do more to screen candidates for office and make it clear that swearing an oath to defend the constitution doesn’t elevate one above their britches.

  8. GWPDA says:

    “It may also be that they believe that because it is routine for Presidents and Vice Presidents, when leaving office, to remove their papers from their official residences and offices and then sort through the stuff they have to send to the Archives.” In fact, believe what anyone likes, it is the responsibility of the White House Office of Records Management (WHORM) and the records managers there (civil servants all) to ‘sort thru the stuff they have to send to the Archives’. My belief is that WHORM was almost certainly under-staffed or unstaffed, that the Staff Secretary whose responsibility it was to notify WHORM to take charge of documents was in the Trump administration otherwise occupied, and that the Staff Secretary in the Biden Vice-Presidency was probably casual or negligent. WHORM however is a standing administrative office, it is not part of NARA and it is not commanded by the President or the Vice President, just as the Records Officers of any other administrative element are not commanded by the President. Just as I, as a Command Historian assisted the Protocol Officer to determine the proper disposition of administrative records of the Command, but was not subject to the instructions of the President of the United States.

    • Troutwaxer says:

      You’ve got an interesting take on all this, and you reminded me of something.

      Chris Christie tried to get the Trump Administration fully through the transition process in 2016-2017 and Trump pulled the rug out from under him, so I wonder if chasing down all the documents which should have gone into the archives is something which slipped through the cracks when Trump told Christie to stop the hiring which is involved with every presidential transition. Wikipedia summed the transition up as follows:

      The Trump transition has been assessed by some as having been a troubled transition, with many calling it “chaotic”. The chaotic nature of the transition has been largely attributed to Trump’s decision making, including his firing of Chris Christie and scrapping of the pre-election planning which Christie had undertaken for the transition, which meant that the transition had to start* their planning from scratch.

      * This should probably read “…restart their transition from scratch” – Troutwaxer

      https://en.wikipedia.org/wiki/Presidential_transition_of_Donald_Trump#Assessment_of_the_transition

      And of course Kushner was involved.

      https://www.cnn.com/2016/11/16/politics/trump-transition-jared-kushner-chris-christie/index.html

      Here’s a great article in the Guardian, which makes everything very clear.

      https://www.theguardian.com/news/2018/sep/27/this-guy-doesnt-know-anything-the-inside-story-of-trumps-shambolic-transition-team

      Sorry for all the links, but I suspect the lack of an intelligent and careful transition might be a large part of why these classified documents didn’t get taken care of. If nothing else, this would make an interesting defense for Biden. ;-|

      • Troutwaxer says:

        I should also note that it might be interesting if an enterprising reporter were to call Mr. Christie and ask some questions about staffing the archives…

    • Tech Support says:

      “and that the Staff Secretary in the Biden Vice-Presidency was probably casual or negligent.”

      This assertion makes me wonder about chain-of-custody practices regarding classified documents being distributed in the White House. If I’m the VP, and I am given a TS/SCI document, who is going to know if I take the document from my office in the WH to my VP limo in the garage and then drive over to my VP residence and then put the folder in my desk at home? How would my secretary know?

      Given that NARA doesn’t necessarily know all the documents they should have, I’d tend to imagine that WHORM doesn’t really know either. Printouts of classified documents are apparently not serialized for tracking purposes, otherwise there would be some sort of canonical record of all the existing copies and therefore the ability to do some basic inventory management, right?

      Seems to me that there is probably some level of unintended leakage from every single WH since the classification process began.

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