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IPFS News Link • Constitution

Robert Barnes: Why Article II Voids the Trump Indictment

• LewRockwell.com - Charles Burris

? Article II of the United States Constitution commences: "The executive Power shall be vested in a President of the United States."

? Not Congress. Not the judiciary. Not a bureaucracy. The democratically elected, Constitutionally empowered President only.  As it relates to any executive action, he is the government. Unlike other attributes, the Constitution does not constrain the President's power to expressly authorized powers. As Justice Thomas explained: "it includes all powers originally understood as falling within the executive power of the Federal Government." All powers. Not some. Not a few. Not conditioned upon the approval of others. All powers.

? This power included all powers concerning national security in foreign affairs. The leading lights of the philosophers shaping the ideas of our founding fathers all concurred. Locke agreed. Blackstone agreed. Montesquieu agreed. George Washington agreed. Thomas Jefferson agreed. Alexander Hamilton agreed. No one really disagreed. This necessarily includes all the powers governing secrets, be they labeled classified, national security, or "top" secrets. The President alone decides what can be classified, national security, or a secret from the public.

? The Supreme Court recognizes this repeatedly. Any issue of national security "is committed by law to the appropriate agency of the Executive Branch." Why? Article II: "The President after all is the Commander in Chief of the Army and Navy of the United States. His authority to classify and control access to information bearing on national security…flows primarily from this constitutional investment of power in the President, and exists quite apart from any explicit congressional grant." At all times, "the authority to protect such information falls on the President as head of the Executive Branch and as Commander in Chief."

? Even liberal academics respected this reality. The President can "declassify at will", is not bound by executive orders of prior Presidents or even his own, and cannot be limited by Congress. Even Trump-hating Lawfare admitted this: "the nature of the system is that the President gets to disclose what he wants." As they admitted: "the reason is that the very purpose of the classification system is to protect information the President thinks sensitive." Hence, he can "depart from it at will."

? This is why the Presidential Records Act gives the President exclusive, discretionary, non-reviewable, uncontestable power to remove documents when he leaves The White House without the right of anyone to take those documents back (a law increasingly irrelevant in a digital age where these documents are merely paper copies of digitally stored documents).

? In a rare instance of documents without copies came a repeat of the Nixon tapes: the Clinton tapes. Bill Clinton removed tapes that included taped presidential conversations with other leaders concerning national security matters, as well as contemporaneous thoughts on pending matters of public policy, including national security. Clinton made no copies, allowed access to journalists, and hid them from the Archives as well as the public from FOIA requests. Clinton kept the tapes in his sock drawer, and refused to turn them over.  Judicial Watch sued to get them.

? The federal court dismissed Judicial Watch's suit on grounds the President unilaterally decides whether a document is a "Presidential record" requiring archived security, even when it is obvious for everyone to see the document is a "presidential" record. This is because of Article II that limits Congress' ability to invade the executive power of the President over executive documents concerning executive decisions. As the court held: the decision to label documents personal is in the President's "sole discretion." Referencing a prior case concerning President Bush destroying records from the Reagan administration, such decisions about record classifications and designations "leaves the implementation of such a requirement in the President's hands." As the court held: "the President enjoys unconstrained authority to make decisions regarding the disposal of documents." The President has "unfettered control" over those documents.

? Bush the First literally destroyed documents of a national security manner from a prior administration without consequence, then stored classified documents in an abandoned bowling alley. Clinton kept tapes in his sock drawer. Obama left documents in an abandoned furniture store. Trump had his in a secure SCIF location at the summer White House of Mar a Lago, already made secure during his administration, discussed their existence with a single reporter, and shared the contents of them to no one, even though he Constitutionally could to anyone.

? Our Constitution doesn't countenance secret governments in America, least of all a secret bureaucracy that can control the country's secrets against the elected President of the United States. That's why the indictment of Trump is Constitutionally void.

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