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The Desperate Hypocrisy of the Trump Legal Clean-Up Crew

They say he was acting in an official capacity when denying defamation charges—a claim a federal judge rejected yesterday—but not when declassifying documents.
by Kim Wehle
October 28, 2020
Featured Image
White House chief of staff Mark Meadows on October 13, 2020 (Photo by KEVIN DIETSCH / POOL / AFP) (Photo by KEVIN DIETSCH/POOL/AFP via Getty Images)

On October 20, President Trump’s chief of staff declared, under oath, that the president didn’t actually mean the things he said in a tweet on October 6 about having declassified a bunch of Russia investigation documents. Here is the Trump tweet in question:

In an affidavit, Mark Meadows declared that Trump’s “statements were not self-executing declassification orders and do not require the declassification or release of any particular documents, including the FD-302 reports of witness interviews prepared by” the FBI for Special Counsel Robert Mueller.

As CNN legal analyst Elliott Williams noted on Twitter, this is the same president who, in a lawsuit in which the Justice Department intervened, recently argued in federal court that Trump cannot be sued over statements he made about a woman who accused him of rape because he was acting in his “official capacity” when he made them. E. Jean Carroll claims that Trump raped her in a department-store dressing room many years ago, while Trump was a private citizen. In response to Carroll’s claims, Trump denied in an interview with The Hill that he had ever met her, accused her of “totally lying,” and stated that she was “not my type.”

Yesterday, a federal judge smacked down DOJ’s attempt to represent Trump in Carroll’s subsequent defamation suit. DOJ had claimed that Trump’s public denial had “addressed matters relating to his fitness for office as part of an official White House response to press inquiries.” The state court judge assigned to the case rejected Trump’s argument—through private counsel—that he was accordingly immune from civil suit as president. (That argument had been roundly rejected by the U.S. Supreme Court in Clinton v. Jones.) DOJ removed the case from state court to federal court, arguing that it involves a question of federal law. In his ruling yesterday, District Judge Lewis A. Kaplan wrote that

President Trump’s comments [about Carroll] concerned media reports about an alleged sexual assault that took place more than twenty years before he took office. Neither the media reports nor the underlying allegations have any relationship to his official duties.

Under the relevant statutes, President Trump is not an “employee of the Government” and was not “acting within the scope of his office or employment,” and so, ruled Judge Kaplan, DOJ cannot take over his defense in the Carroll lawsuit. (No confirmation yet on whether DOJ will appeal, but the safe money would bet that it will.)

In arguing that it should take over Trump’s defense in the Carroll case, DOJ emphasized that, “given the president’s position in our constitutional structure, his role in communicating with the public is especially significant.”

Which brings us back to his tweets about declassifying documents related to the Mueller investigation.

Last year, BuzzFeed and CNN filed Freedom of Information Act (FOIA) lawsuits seeking access to the typewritten narratives of witness interviews—the FBI “302s”—conducted by Robert Mueller’s team. Approximately 4,000 pages have been released thus far, but with heavy redactions. DOJ has claimed that the volume of records requested could top 18 billion pages.

Following Trump’s October 6 tweet, BuzzFeed News filed an emergency motion seeking access to thousands of pages of additional Mueller-related documents before the November 3 voting deadline on the grounds that Trump’s tweets waived any legal basis for keeping them confidential under FOIA. A federal judge ordered DOJ to “confer with the White House” and report back on its “official position.”

Meadows’s affidavit disavowed that the president’s tweets were self-executing declassification orders, claiming instead that “the President’s statements related to the authorization he had provided the Attorney General to declassify documents as part of his ongoing review of intelligence activities relating to the 2016 Presidential election and certain related matters.” In its opposition papers to BuzzFeed’s emergency motion, DOJ clarified that Trump had issued a presidential memorandum allowing Attorney General Bill Barr to declassify information on May 23, 2019, but that “the President’s Twitter statements do not require the declassification of any particular documents” (emphasis added).

In other words, Barr—not the president—appears to have ultimate declassification authority here, according to DOJ.

To be clear, DOJ did not dispute that the president has broad declassification authority in general, but argued that “the Twitter statements . . . do not indicate that the President was exercising his Constitutional authority to declassify specific information.”

Let’s unpack this, in all its hypocritical splendor: Denying a rape twenty years ago is per se an official act because rape bears on Trump’s constitutional fitness for office (true), but a public statement from the president confirming the declassification of previously classified documents is not an official act unless the public statement (a) expressly indicates that the president is exercising his Article II authority as commander-in-chief over classified material, and (b) expressly identifies the declassified documents in the tweet.

Here’s what the governing Executive Order—signed by President Obama—generally says about classification and declassification: “The authority to classify information originally may be exercised only by . . . the President and the Vice President,” along with agency heads and other officials, including those “designated by the President” (e.g., Bill Barr). “Information shall be declassified or downgraded by . . . the official who authorized the original classification, if that official is still serving in the same position and has original classification authority,” or “a supervisory official,” which presumably includes the president himself.

As far back as 2017, moreover, then-White House press secretary Sean Spicer announced at a press briefing that Trump’s tweets calling his travel ban a “TRAVEL BAN” count as official policy because Trump “is the President of the United States, so they’re considered official statements by the President of the United States.” Spicer’s successor reaffirmed that stance a few months later.

Obviously, Trump irresponsibly mistweeted when he said that he had declassified the materials relating to Mueller’s investigation into Russia’s interference in the 2016 election. Once again, his recklessness potentially compromised national security and required the government’s lawyers to clean up after him in court by effectively footnoting the law governing declassification. But what’s galling is the hypocrisy of seeking—at the same time—to trounce Carroll’s private defamation suit under the guise of the Trump’s constitutional presidential prerogatives.

Trump’s tweets should operate to expose him to, not selectively protect him from, the glare of public scrutiny.

Kim Wehle

Kim Wehle is a contributor to The Bulwark. She is a professor at the University of Baltimore School of Law, a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation, and the author of How to Read the Constitution—and Why (HarperCollins). Her latest book is What You Need to Know About Voting—and Why (HarperCollins). Twitter: @kimwehle.