IIRC (probably not :).. when Daddy Bush's 12 year access limit on his records was up, he got an extension on it... to whenever he decided to open his records. ?
Excellent legal analysis, and your conclusion is solid. Which raises the question why the government took this action? Certainly they knew it raised the constitutional questions you have identified and would likely be enjoined. So why did they do it? I would appreciate knowing our opinion.
There is an extreme bias in legal research against statutes and in favor of case law. That is how lawyers are taught. The casebook method. We study and read cases and actually forget there are statutes that exist. The mentality is that if there is no case about a statute, the statute does not exist. And that is what has happened here.
Although lawyers have mentioned the Presidential Records Act, there are very few cases on it and none have anything to do with an actual President. Even though a few lawyers had mentioned the Act, nobody seems to have actually gone through it to see what it said.
I had the gut feeling that if we trusted a President with the nation's secrets while he was in office, we should trust him as well with them when he left and that Congress might have written a law to that effect. My instincts were right. I found that law in the Presidential Records Act. It just extended the governmental immunity a President has while in office to a former President. And all Presidents should have this immunity regardless of political party.
So to answer your question, I seriously doubt the government lawyers know. If Trump's lawyers knew, I am sure that they would be taking a different approach to this litigation, like filing what is known as a Plea to the Jurisdiction, which means that you are contesting the Court's jurisdiction.
Thanks for the response, David. Lucid as usual. Although I am not an attorney we are kindred spirits in that I read the details when I’m looking for the right answer. So I am a bit surprised that Trump’s lawyers have not filed the jurisdiction plea you describe. It seems counter intuitive that his attorneys wouldn’t think to read the law about presidential records. But stranger things have happened, I suppose. Perhaps their perspective is that this affair is more political than juridical and hence they see their venue more at the bully pulpit rather than the courtroom bar. However, I would prefer they took your approach as I think it is not only efficient and accurate, but would seem to be in line with our times in that it would seek to make new case law on an important constitutional issue; i.e. the supremacy of the constitution or the supremacy of the administrative state. We live in interesting times.
I just see this so often. It does not surprise me at all.
The first thing I did after the FBI search was go to the Constitution, because things did not seem right. I did not know where else to start. How could the Congress make a law that made a President a criminal for taking Presidential records with him after he left office? And then declare his records to be government records? That is a classic separation of powers issue.
Taking records is not treason and the statutes used as the basis of the warrant were for unlawful possession, not for treason. If it was not treason then it had to be a separation of powers issue.
And the Constitution seems to indicate that Congress cannot dictate to a President what he does with his records.
The clause about Presidential records in the Constitution has never been litigated as far as I could find. So you won't find this clause in a case search. So you don't even find a clause in the Constitution because you don't think to read the Constitution unless you have read it a lot. Most lawyers don't. I have read it more than most, but probably not as much as I should have. You won't believe it, but in a Constitutional law class, you don't really read the Constitution. You read cases about it. And that is the mindset.
Then several days later I heard about the Presidential Records Act. And you won't find any case like this one. So you don't find a statute that helps.
No cases on the Constitution or a statute means legal clueless far too often.
To a layman it should seem counterintuitive that Trump's lawyers would not read the Presidential Records Act. Especially if they had been negotiating with the AG for months. But that is the reality.
Trump can't be guilty of obstruction if the government has no right to claim he is in unlawful possession of records he is entitled to have. He has every right to claim they are his, including going to court in the US District Court in DC and claiming his rights and privileges. He should do that.
IIRC (probably not :).. when Daddy Bush's 12 year access limit on his records was up, he got an extension on it... to whenever he decided to open his records. ?
You could very well be right. I don't know.
Excellent legal analysis, and your conclusion is solid. Which raises the question why the government took this action? Certainly they knew it raised the constitutional questions you have identified and would likely be enjoined. So why did they do it? I would appreciate knowing our opinion.
There is an extreme bias in legal research against statutes and in favor of case law. That is how lawyers are taught. The casebook method. We study and read cases and actually forget there are statutes that exist. The mentality is that if there is no case about a statute, the statute does not exist. And that is what has happened here.
Although lawyers have mentioned the Presidential Records Act, there are very few cases on it and none have anything to do with an actual President. Even though a few lawyers had mentioned the Act, nobody seems to have actually gone through it to see what it said.
I had the gut feeling that if we trusted a President with the nation's secrets while he was in office, we should trust him as well with them when he left and that Congress might have written a law to that effect. My instincts were right. I found that law in the Presidential Records Act. It just extended the governmental immunity a President has while in office to a former President. And all Presidents should have this immunity regardless of political party.
So to answer your question, I seriously doubt the government lawyers know. If Trump's lawyers knew, I am sure that they would be taking a different approach to this litigation, like filing what is known as a Plea to the Jurisdiction, which means that you are contesting the Court's jurisdiction.
Thanks for the response, David. Lucid as usual. Although I am not an attorney we are kindred spirits in that I read the details when I’m looking for the right answer. So I am a bit surprised that Trump’s lawyers have not filed the jurisdiction plea you describe. It seems counter intuitive that his attorneys wouldn’t think to read the law about presidential records. But stranger things have happened, I suppose. Perhaps their perspective is that this affair is more political than juridical and hence they see their venue more at the bully pulpit rather than the courtroom bar. However, I would prefer they took your approach as I think it is not only efficient and accurate, but would seem to be in line with our times in that it would seek to make new case law on an important constitutional issue; i.e. the supremacy of the constitution or the supremacy of the administrative state. We live in interesting times.
I just see this so often. It does not surprise me at all.
The first thing I did after the FBI search was go to the Constitution, because things did not seem right. I did not know where else to start. How could the Congress make a law that made a President a criminal for taking Presidential records with him after he left office? And then declare his records to be government records? That is a classic separation of powers issue.
Taking records is not treason and the statutes used as the basis of the warrant were for unlawful possession, not for treason. If it was not treason then it had to be a separation of powers issue.
And the Constitution seems to indicate that Congress cannot dictate to a President what he does with his records.
The clause about Presidential records in the Constitution has never been litigated as far as I could find. So you won't find this clause in a case search. So you don't even find a clause in the Constitution because you don't think to read the Constitution unless you have read it a lot. Most lawyers don't. I have read it more than most, but probably not as much as I should have. You won't believe it, but in a Constitutional law class, you don't really read the Constitution. You read cases about it. And that is the mindset.
Then several days later I heard about the Presidential Records Act. And you won't find any case like this one. So you don't find a statute that helps.
No cases on the Constitution or a statute means legal clueless far too often.
To a layman it should seem counterintuitive that Trump's lawyers would not read the Presidential Records Act. Especially if they had been negotiating with the AG for months. But that is the reality.
Indeed, that does appear to be the 'reality'. Thanks David. I look forward to your future writing on this topic.
Trump can't be guilty of obstruction if the government has no right to claim he is in unlawful possession of records he is entitled to have. He has every right to claim they are his, including going to court in the US District Court in DC and claiming his rights and privileges. He should do that.