Observations on the Trump and Biden Documents Scandals

Individuals propounded the existence of two different legal standards consisting of one for Democrats, and second more stringent one for Republicans should be mindful of the following. One, the laws on Presidential immunity for a sitting President are different than those for a former President. A sitting President possesses blanket immunity from criminal prosecution, while, in office. The former Presidents do not possess such a wide grant of immunity. Two, it should be noted that the case of President Trump differs from President Biden's case because, President Trump and his team refused on several occasions to comply with lawfully issued subpoenas duces tecum thereby giving justification for the raid. Three, the failure of President Trump's legal team to comply with multiple subpoenas duces tecum, demonstrates that they failed to exercise the due diligence required of members of the legal profession towards their client. Once a subpoena had been issued the legal team advising President Trump should have searched every square inch of Mar a Lago for classified documents. If they had been thorough in the execution of their duties a second and third subpoena would not have been necessary because, the documents would have been discovered and turned over. Their failure to exercise due diligence left President Trump vulnerable to such a raid and potentially criminal charges. Four, unlike President Trump and his legal team, President Biden's legal team turned over the documents in their possession willingly and voluntarily. In Biden's case the Archivist of the United States, and by extension the National Archives and Records Administration were not compelled to seek multiple subpoenas duces tecum to compel production and disgorgement of the records in his possession. By communicating with the National Archives, and arranging the transfer of the documents in President Biden's possession to the National Archives in a timely and expeditious manner President Biden's team exercised the due diligence required of attorneys possibly mitigating any future legal consequences. Five, the blanket grant of immunity that protected President Trump from any criminal process or prosecution stemming from the allegations made by E. Jean Carroll during his last two years in office now applies to President Biden as the current President of the United States. Six, turning to the question of whether a President can classify, declassify, or reclassify documents 'just by thinking about it', or through an oral statement without any supporting evidence of the intended change in classification as President Trump has claimed. In Department of the Navy v. Egan, 484 U.S. 518 (1988) Justice Blackmun writing on behalf of a five Justice majority emphasized that the President's ultimate authority to determine the level of classification and controls needed to secure information is part and parcel of a President's duties as commander in chief of the armed forces of the United States. Justice Blackmun asserted that the authority of the President in these matters flowed naturally from the powers granted to the President of the United States under Article II of the Constitution of the United States. "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). This Court has recognized the Government's "compelling interest" in withholding national security information from unauthorized persons in the course of executive business. Snepp v. United States, 444 U. S. 507, 444 U. S. 509, n. 3 (1980). See also United States v. Robel, 389 U. S. 258, 389 U. S. 267 (1967); United States v. Reynolds, 345 U. S. 1, 345 U. S. 10 (1953); Totten v. United States, 92 U. S. 105, 92 U. S. 106 (1876). The authority to protect such information falls on the President as head of the Executive Branch and as Commander in Chief. Since World War I, the Executive Branch has engaged in efforts to protect national security information by means of a classification system graded according to sensitivity. See Note, Developments in the Law -- The National Security Interest and Civil Liberties, 85 Harv.L.Rev. 1130, 1193-1194 (1972). After World War II, certain civilian agencies, including the Central Intelligence Agency, the National Security Agency, and the Atomic Energy Commission, were entrusted with gathering, protecting, or creating information bearing on national security. Presidents, in a series of Executive Orders, have sought to protect sensitive information and to ensure its proper classification throughout the Executive Branch by delegating this responsibility to the heads of agencies. See Exec.Order No. 10290, 3 CFR 789 (1949-1953 Comp.); Exec.Order No. 10501, 3 CFR 979 (1949-1953 Comp.); Exec.Order No. 11652, 3 CFR 678 (1971-1975 Comp.); Exec.Order No. 12065, 3 CFR 190 (1979); Exec.Order No. 12356, § 4.1(a), 3 CFR 174 (1983). Pursuant to these directives, departments and agencies of the Government classify jobs in three categories: critical sensitive, noncritical sensitive, and nonsensitive. Different types and levels of clearance are required, depending upon the position sought. A Government appointment is expressly made subject to a background investigation that varies according to the degree of adverse effect the applicant could have on the national security. See Exec.Order No. 10450, § 3, 3 CFR 937 (1949-1953 Comp.)." Department of the Navy v. Egan, 484 U.S. 518, 527-528 (1988). The absolute final authority of the President of the United States in matters of classification and control of information is indisputable indeed the recent decision of the Eleventh Circuit Court of Appeals in Trump v. United States, 2022 U.S. App. LEXIS 26437 followed the reasoning employed by the Supreme Court of the United States in Egan. Having said that neither the Circuit Court of Appeals in the Trump case, or more importantly the Supreme Court of the United States in the earlier Egan decision held the President of the United States exempt from following the provisions enacted through executive orders developed under the auspices of 50 USC § 3161 to regulate and administer the classification and control of information. In the Trump case, which, the Supreme Court declined to overrule. and allowed the decision and its holdings to stand; the Eleventh Circuit argued implicitly that the President of the United States is legally bound to adhere to the processes and procedures established in accordance with 50 USC § 3161, and implemented through various executive orders. Last, a Congressional investigation is warranted, however, it should examine both the Trump and Biden cases.