The Eleventh Circuit's unconstitutional ruling against Trump
The Eleventh Circuit issued an unconstitutional ruling against President Donald Trump in the Mar-a-Lago matter. The U.S. Supreme Court has made clear that the president himself, not any other part of the U.S. government, has the final say over what constitutes a classified document. No one can second-guess the president, yet that's what the Eleventh Circuit did by issuing an order ceding control over classification decisions to the Department of Justice.
A district court judge granted Trump's motion for a special master to review the documents the FBI seized from his property, many of which Trump argued were privileged. The DOJ appealed, seeking a stay of the order as it related to documents it claims are classified. The appellate court framed the issue this way:
We decide only the narrow question presented: whether the United States has established that it is entitled to a stay of the district court's order, to the extent that it (1) requires the government to submit for the special master's review the documents with classification markings and (2) enjoins the United States from using that subset of documents in a criminal investigation. We conclude that it has.
The determinative factor was the court's conclusion that the DOJ had established its entitlement to possess, review, and control documents with "classification markings." (The word "classified" shows up 62 times in the decision.) The decision focuses entirely on who has the right to have possession and control of "classified documents."
But of course, that's the wrong issue. The real question is who gets to decide whether documents are classified. Is the answer bureaucrats and judges whom, the American people did not elect, or the American president, who has complete and total (that is, plenary) power over the entire issue of information classification?
Image made using "splat" by Pharion.
The latter, of course, is the correct answer. The president may delegate that plenary power to agents in the bureaucracy or Judiciary, but it is always and ultimately the president's power. The judges and bureaucrats have no authority when they're lined up against a president.
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.
This means that every word of the 29-page decision justifying letting the DOJ hang onto the documents is garbage. The analysis is meaningless because the core principle is wrong. It's irrelevant that the court writes, "When matters of national security are involved we 'must accord substantial weight to an agency's affidavit.'" President Trump's authority, exercised while he was still in office, supersedes any agency actions.
Likewise, the court grossly overreached when it said, "We cannot discern why Plaintiff [i.e., Trump] would have an individual interest in or need for any of the one-hundred documents with classification markings." That officious dictum is none of the court's business and outside its authority. There are similar effluvia through the decision, all overreaching and erroneous.
Bottom line: The Judiciary and bureaucracy cannot intrude on the Executive's authority — and in this case, the Executive is the president, not his out-of-control minions. Agents cannot have greater say than the principal. The documents' classification status all devolves to Trump and his conclusions about the documents' status, not anyone else's theories.
What the Court should have done was to rule on its own initiative that the DOJ had grossly overreached and ordered that the DOJ return to Donald Trump every government document, photograph, newspaper clipping, personal letter, and article of Melania's clothing. It's telling in a Deep State kind of way that it chose not to do so.