RUTHFULLY YOURS

The Bible holds that “Even a fool, when he holdeth his peace, is counted wise…” (Proverbs 17:28.) In the modern era, with attribution to Mark Twain, Abraham Lincoln, or others, that’s been reworked as “Better to remain silent and be thought a fool than to speak and to remove all doubt.” Former Attorney General Bill Barr’s latest embittered statements about the documents the FBI stole from Mar-a-Lago place him squarely within that quotation.

In the government, where it’s almost impossible to get fired, those who stick around long enough become respected, even revered. That’s especially true for attorneys who work in the Department of Justice. Having the entire weight and resources of the government tends to give them a track record they wouldn’t earn in the free market. Barr’s pronouncements about Trump’s potential criminal liability when it comes to the FBI’s Mar-a-Lago raid leads me to believe he earned his august reputation, not because he’s knowledgeable or bright, but just because he stuck around.

Barr appeared on PBS to opine about Merrick Garland’s politicized, despotic decision to investigate Trump the moment that Trump announced he was running again for president. Barr gave it as his opinion that the DOJ has a case:

Regarding the FBI’s raid on Mar-a-Lago earlier this year as part of their criminal investigation into Trump’s handling of U.S. government records, Barr said, “If the Department of Justice can show that these were indeed very sensitive documents, which I think they probably were, and also show that the president consciously was involved in misleading the Department, deceiving the government, and playing games after he had received the subpoena for the documents, those are serious charges.”

When asked if Trump’s actions were a “serious enough crime” to prosecute, Barr said, “That’s serious.”

“Well, I’ve said that I personally think that they probably have the basis for legitimately indicting the president. I don’t know, I’m speculating,” he said. “But given what’s gone on, I think they probably have the evidence that would check the box. They have the case.”

Barr is totally and completely wrong because his premise is wrong. “If the Department can show that these were indeed very sensitive documents which I think they probably were….” Nope, that’s not how it works.

Image: Bill Barr. YouTube screen grab.

Whether Bill Barr or Merrick Garland or the head of the White House janitorial services thinks the documents are “sensitive” is utterly irrelevant. Political hacks believe that, because bureaucrats stamp the words “sensitive,” “confidential” or “top secret” on pieces of paper, they have spoken as surely as God did when he issued the law to Moses on top of Mount Sinai. Wrong.

When government drones “classify” documents, they do so only because their authority comes from the president. They can neither challenge nor exceed the president’s authority. Neither can Congress for that matter.

This isn’t me saying that. This is the Supreme Court of the United States in an unchallenged decision that relies on a long-standing (as in, back to 1788) assignment of power to the executive. Presidents can voluntarily respect a national security law, but they do not have to abide by it.

That’s because the president—and only the president—has plenary power when it comes to national security matters. Plenary power means “a power that has been granted to a body or person in absolute terms, with no review of or limitations upon the exercise of that power.”

The leading case on this is Navy v. Egan, 484 U.S. 518 (1988), which considered whether a civil service board can review a “laborer’s” being denied national security clearance. In that context, the Supreme Court was clear about the president’s plenary power:

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 and to determine whether an individual is sufficiently trustworthy to occupy a position in the Executive Branch that will give that person access to such information flows primarily from this constitutional investment of power in the President, and exists quite apart from any explicit congressional grant. See Cafeteria Workers v. McElroy, 367 U. S. 886, 367 U. S. 890 (1961).

Note that there are no procedural rules the president must follow to exercise his authority. Again, that’s because neither Congress nor the bureaucracy (which reports to the president) has the power to impose rules on him.

Because Trump was still the President of the United States, at the very moment when he transferred those documents from the White House to his private residence, they were automatically and instantly declassified. After that, nothing in his possession was either “sensitive” or “classified,” and neither the current nor the past Attorney General can change that fact.