Andrea Widburg this morning, in The Eleventh Circuit’s unconstitutional ruling against Trump, cuts through all the BS you may have been hearing about the Trump “classification” case—and that means also the FBI’s MAL Raid as well. She does it by citing SCOTUS authority—something I wasn’t able to do yesterday. We all understand the principles involved, but it’s a great help to also have the authority of a SCOTUS case. I’ll just excerpt the money paragraphs, which are brief (but follow the link for the full article).
Widburg presents the question as the knuckleheads (they’re either that or something much worse) on the 11th Circuit should have presented it:
“The real question is who gets to decide whether documents are classified.”
The answer has been answered before. It’s there in the Constitution, of course, in the definition of the POTUS as Commander in Chief, but it has also been addressed by the SCOTUS. The answer? The POTUS decides.
Why am I so certain about this? Because the United States Supreme Court said so. In Navy v. Egan, 484 U.S. 518 (1988), the Court was asked to determine whether a civil service board can review the case of a “laborer” denied a national security clearance. The Court concluded that the President is the one vested with the power to determine national security matters:
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).
On the facts in Navy v. Egan, that principle prevented Congress from limiting the president’s ultimate authority or delegating the authority. However, the same principle means that both the judiciary and the president’s subordinates in the bureaucracy lack any authority unless the president has delegated it. And in this case, by removing the documents from the White House, President Trump asserted his authority over the documents’ classification status, overriding any hack bureaucrat or judge.
Now, since we’re talking about this within a real world context—it’s not a matter of purely academic interest—it’s worthwhile considering the direction in which this is heading.The fact that the case Widburg cites dates back to 1961 shows that these issues have been on people’s minds for some time. However, the steroidal development of the Deep State—for purposes of domestic control—really dates back to 9/11, albeit with warning signs that go back further. Matt Taibbi—in an article that was pointed out to me both by a friend and by several commenters—does a masterful job in presenting what we’re facing. He’s describing what I’ve been talking about—the transformation of our Constitutional Republic into a National Security State.
Again, these are just excerpts of a much longer article:
The Justice Department Was Dangerous Before Trump. It's Out of Control Now
The current Trump investigation is just the latest chapter of a long-brewing civil liberties nightmare.
…
... the Justice Department increasingly argues that affording certain people rights harms the secret objectives of the secret state.
The Trump case is almost incidental to this wider story of extralegal short-cuts, intimidation, improper searches, and especially, a constant, intensifying effort at discrediting the adversarial system in favor of an executive-branch-only vision of the law, in which your right to stand before a judge or jury would be replaced by secret bureaucratic decisions. “Trump has become the way they sell this,” says one defense attorney. “But it’s not about Trump. If you focus on Trump, you’ll miss how serious this is. And it started a long time ago.” When? “Go back to 9/11,” he says. “You’ll see.”
...
Not just the Justice Department but multiple federal enforcement agencies have cheated and bullied in countless cases involving the Orange One, without inspiring a whit of outrage from traditional civil liberties defenders.
Whether it’s the FBI lying to the FISA court to get authority to secretly spy on the obviously minor character Carter Page, or prosecutors falsely claiming Maria Butina sold sexual favors (inspiring countless headlines identifying her as a Red Sparrow-style prostitute-spy) before sending her off to solitary confinement for no reason, or sending undercover agents to spy on Michael Flynn when he went with Trump to a pre-election security briefing held by the Office of the Director of National Intelligence (meaning, as Justice Inspector General Michael Horowitz noted, the FBI was effectively spying on the ODNI’s office as well), or burying exculpatory reports from informants about everyone from Page to George Papadopoulous, falsely spreading rumors to journalists that Flynn had an affair with an Oxford PhD candidate, lying to journalists (and even congress) by claiming the release of the name of long-ago outed government source Stefan Halper could “risk lives,” and my personal favorite, Special Prosecutor Robert Mueller arguing that obliging the defense’s right to discovery in a case against a Russian suspect “unreasonably risks the national security interests of the United States,” federal investigators have seemed almost proud of their indifference to due process in the last seven years.
One major innovation, however, is the DOJ/FBI investigation that never leads to formal charges or a trial, but is ostentatiously covered in the news media, almost as if that is the point. The DOJ isn’t just involving itself in censoring news stories, even true news stories, it has also become a major generator of news, whispering thousands of headlines into existence in the last seven years, which their own former employees then comment upon on television. The pee tape for instance never got near a courtroom, but the FBI director helped create the “hook” the networks needed to report it by holding a meeting with then-President-elect Trump that was leaked to CNN (and soon, the rest of the world) within about five minutes. The agency has become a driver of public opinion in ways the Pentagon after 9/11 never dreamed of.
Moreover, in a story that continues to be almost totally unreported, virtually every federal agency that’s investigated Trump across the last six years has leaked its balls off, brazenly violating laws against the release of grand jury information or classified material, with the clear purpose to intimidate. ...
...
The Justice Department’s Espionage Act case against Trump is based on the notion that improper possession of “national defense information” by an ex-president — a walking biological repository of state secrets — can only be stopped by the FBI, the soul of organizational rectitude and the only body we can trust to secure classified material.
It almost defies imagination, but it’s real.
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