Trump's Indictment, National Security, and Classified Documents: This is a Very Big Deal
By Eric Segall
It is a monumentally important and in many ways disturbing thing for one national political party to indict a former President of a different political party. That's not exactly what's happening in the Trump documents case, of course. Attorney General Merrick Garland sought the appointment of Jack Smith (a political independent) as special counsel precisely to avoid charges of partisanship. Even so, such charges are inevitable and not entirely unwarranted. Although functionally independent in most respects, Smith is ultimately working within the Department of Justice. Thus, no matter how persuasive the case, there will be charges of excessive partisanship (especially when the former POTUS is running again), and threats of retaliation by the party out of power. That is maybe why Trump is the first former President to be indicted for federal crimes.
However, no person in America should be above the law, including a former President, and the 30-plus count indictment seems quite persuasive. Of course, like all people charged with crimes in this country, Trump is presumed innocent until proven guilty or he pleads guilty, and he is entitled to full due process of law.
The point of this short blog post is simply this: the mishandling of classified and top secret government documents is extremely serious, potentially quite dangerous, and puts both our national security and American lives at risk. DO NOT LISTEN TO PEOPLE WHO SAY WHAT TRUMP IS ACCUSED OF DOING IS NO BIG DEAL. IT IS A VERY BIG DEAL.
How do I know?
In the late 1980s and early 1990s, I worked as a trial attorney at the United States Department of Justice under President George H.W. Bush. In that role, I handled a large number of classified documents cases involving top-secret information. During the Iran-Contra investigation, I also represented the National Archives when the Republican independent counsel Lawrence Walsh issued a subpoena to the Archives for documents that were primarily President Ronald Reagan-era materials. The Presidential Records Act created a number of difficult and complex legal issues, and I was assigned to try and work out a deal between Walsh and the Bush Administration concerning the sought-after documents.
The National Archives Website describes the PRA as follows:
The Presidential Records Act of 1978, 44 U.S.C. §§ 2201-2209, governs the official records of Presidents and Vice Presidents that were created or received after January 20, 1981 (i.e., beginning with the Reagan Administration). 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 ... must manage the records of their Administrations.
I can assure you that people at the highest levels of the Bush Administration, both during Iran-Contra and in other cases, took the labeling, handling, and storage of classified information extremely seriously. I do not mean to sound overly dramatic but in many situations the unauthorized release of classified information can threaten peoples' lives, especially our spies, and can obviously jeopardize national security.
In addition, the PRA seeks to insure that official, taxpayer-funded materials of Presidential administrations are available to the public and academics for important purposes (after 5 years). To accomplish that goal, the Archives goes through the documents meticulously to make sure no classified, top secret, or even personnel-type personal information are inadvertently released. The Archives, of course, has to have the materials in order to do its important work.
Unlike President Trump, both President Bush's and President Reagan's attorneys were interested in making sure all documents were exactly accounted for and that classified information stayed secret until properly declassified. The three teams--Reagan's lawyers, the DOJ (me), and the Independent Counsel--though at odds on many issues, worked together to come up with a deal that satisfied the substantial law enforcement concerns of the Independent Counsel, the national security concerns of the United States, and the important interests of my client, the National Archives, to review and process the materials carefully, safely, and in accordance with the Presidential Records Act. Although we disagreed on the law, the facts, and the release of some materials, everyone involved on all sides recognized the importance of the procedures set up by the PRA.
President Trump, on the other hand, is accused of mishandling the documents, showing them to people without the required security clearances, and not cooperating with urgent requests from the National Archives that he return the documents so that the Archives could do its job.
These accusations, if true, are incredibly serious even if it turns out the information in this case if released would not cause harm. We simply can't have Presidents leaving office with these types of documents and using them as they please. If it is true that nuclear strategies and other military information were in these documents, then the problem is, of course, obvious.
And, it appears Trump did take highly sensitive documents. The folks over at Just Security had this to say:
Because of the remarkably sensitive nature of the documents the former president retained, and the shockingly insecure locations where they were held and transported ('in a ballroom, a bathroom and shower, an office space, his bedroom, and a storage room'), there are potentially grave implications for U.S. national security.
The charges against Trump are not makeweight, trivial, or inconsequential. Our national security and American lives are very much at stake in this litigation.
Do not let people tell you otherwise.