Since When Is a Presidential Records Act Dispute 'Espionage'?

AP Photo/Julia Nikhinson

It’s been over a week now since the controversial raid on Trump’s Mar-a-Lago home in Florida. Despite the “passage of time” (as Kamala Harris would say), we have more questions than answers.

The search warrant indicated that Trump was being investigated under the Espionage Act of 1917—which is absurd, considering all evidence suggests the raid was a response to an ongoing dispute over boxes of records that Trump had stored there under lock and key.

“All presidents take mementos and other records when they leave office. They don’t pack their own boxes,” explains Mike Davis, the former chief counsel for nominations to then-Senate Judiciary Chairman Chuck Grassley and the founder and president of the Article III Project. “The National Archives takes the position that almost everything is a ‘presidential record.’ And the federal government, in general, over-classifies almost everything.”

Even if Trump took classified records, that isn’t a crime. “The president has the inherent constitutional power to declassify any record he wants, in any manner he wants, regardless of any otherwise-pertinent statute or regulation that applies to everyone else,” Davis insists. “The president does not need to obtain Congress’ or a bureaucrat’s permission—or jump through their regulatory or statutory hoops—to declassify anything. How do we know this? The Supreme Court weighed in on this during the 1988 case Department of the Navy v. Egan, in which “The President, after all, is the ‘Commander in Chief of the Army and Navy of the United States.’ U.S. Const., Art. II, § 2. His 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.”

Related: 5 Reasons We Know the Biden Admin Is Engaged in a Cover-Up

Also suspicious is the fact that Attorney General Merrick Garland, who reportedly deliberated over the decision to approve the warrant for weeks, never sought an opinion from the Justice Department’s Office of Legal Counsel (OLC) before approving the raid.

“Perhaps Garland knew OLC wouldn’t give him the answer he wanted,” Davis wonders.

It’s been long pointed out that the Presidential Records Act is not a criminal statute, and yet, the Biden administration is treating a political rival of Joe Biden like a criminal, essentially accusing him of giving state secrets to America’s enemies—a more serious crime than the mere mishandling of classified information. Does the Biden administration actually believe Trump is giving America’s secrets to our enemies? I doubt anyone legitimately believes this. Heck, a multi-million dollar investigation into accusations of colluding with Russia turned up nothing.

But, it’s not about proof, is it? It’s about appearances. If it’s revealed that the FBI is investigating Trump under the Espionage Act, that sounds horrible. Even though it’s absurd, there are enough people who either believe it or want to believe it. There are still people who believe that Trump colluded with Russia in 2016, and now anti-Trump forces are trying to up the stakes by accusing him of espionage via a bogus investigation centered on documents that Trump was allowed to take with him.

Davis says that House Republicans, when they retake the majority, must impeach Attorney General Garland and FBI Director Wray for “their unprecedented and destructive politicization of the Justice Department.” He also called for a long-term plan to “dismantle and rebuild the FBI, so political raids like this never happen again.”



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