The Federal Bureau of Investigation’s (FBI) raid of former President Donald Trump’s Palm Beach, Fla. residence, Mar-a-Lago, serves as a warning to all Republicans who are even thinking of running for President in 2024: If you win, anything you say or do can and will be used against you in a court of law.
Even valid exercises of presidential authority under Article II of the Constitution, including former President Trump’s declassification of documents before he left office related to the Justice Department’s failed investigation of Trump that falsely accused him and his campaign of being Russian agents in 2016, and then carried the top secret investigation over into the Trump administration in 2017.
In the Jan. 19, 2021 memorandum, entitled, “Memorandum on Declassification of Certain Materials Related to the FBI’s Crossfire Hurricane Investigation,” the documents — now seized by the FBI on Aug. 8 from Trump’s house — were clearly declassified. According to the Trump memorandum, “I hereby declassify the remaining materials in the binder. This is my final determination under the declassification review and I have directed the Attorney General to implement the redactions proposed in the FBI’s January 17 submission and return to the White House an appropriately redacted copy.”
This was a lawful exercise of presidential authority to declassify military and other national security information under the Constitution’s Article II, Section 1 vesting clause: “The executive power shall be vested in a President of the United States.”
In 1988, in Department of Navy v. Egan, the U.S. Supreme Court clarified that the President’s authority over classification derives from his implicit executive powers, and not any Congressional statute: “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.”
In other words, any president could have declassified these documents, and it would be legitimate under the Constitution. Whether Trump, Biden or another president, the only requirement is that the exercise of authority occur while that president was in office. In this case, Trump clearly declassified the documents in question before he left office.
And yet, the Justice Department is attempting to criminalize again what was a legitimate exercise of presidential authority. Article II is not Article II anymore.
In the meantime, the Biden White House is claiming that it had no idea that the Justice Department was planning on raiding the Trump residence, with White House Press Secretary Karine Jean-Pierre telling reporters on Aug. 9, “The president was not briefed, was not aware of it… No one at the White House was given a heads-up.”
Instead, it was Attorney General Merrick Garland who said he “personally approved” the raid in an Aug. 11 press conference, stating, “I personally approved the decision to seek a search warrant in this matter.”
Consider the implications of that. The Justice Department and the FBI, without any consultation with the elected leader of the executive branch, President Biden, unilaterally decided to launch another criminal investigation of Trump, Biden’s political opponent and putative frontrunner for the 2024 GOP nomination, and to raid his house.
Biden has not fired Garland, but he should, for mere existence of the criminal investigation clearly weakens the Presidency under Article II of the Constitution. Not just former President Trump, but every president, including Biden, now must consider that acts of the President can later be turned into crimes by the next administration. It’s absurd to consider presidential powers in this way, and yet, here we are, criminalizing things the President clearly has the power to do.
The biggest losers here are the Article II Presidency under the Constitution, our two-party system and of course the American people, who now must live through the consequences of perhaps the worst constitutional crisis since the Civil War. By doing nothing, Biden is leaving it to the judicial branch to do what he refuses, and that is to rein in the Justice Department’s prosecution of Biden’ political opponents — and is taking the risk that the courts won’t get it wrong in the end. This is a powderkeg.
Robert Romano is the Vice President of Public Policy at Americans for Limited Government Foundation.
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