A subpoena would allow a witness to bring the documents requested. Eric Trump revealed in a Fox News interview that his father has been negotiating with the government for months about the documents they wanted back from the former president.
Stzrok explained that there was likely national defense information, not a book or news article that included classified information, but documents that would be beneficial if garnered from another country.
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"Someone not authorized to possess it, in this thread, refers to former President Trump," he explained. Allies of the former president have claimed that as the president he can "declassify" anything he wants. The problem is that Trump is no longer president and when he took the documents to his home, he wasn't the president either.
"Presidents to not 'get' security clearances," Stzrok explained. "They gain access to classified info by virtue of their election, and are the USG’s ultimate classification (and declassification) authority. That goes away the moment their successor is sworn in. By tradition, incumbent Presidents extend access to classified info, as needed, to their successors. Notably, Biden did not, citing Trump’s 'erratic behavior.'"
"At least 3 reasons make a subpoena inappropriate to recover classified docs," he continued. "First, classified documents are the property of the USG. In the hands of an unauthorized person, they are contraband. Imagine using a subpoena to demand the return of $10k stolen by a bank robber. In the words of Asha Rangappa, a subpoena implies the recipient is the lawful custodian or bailor of the property. That’s why the govt has to clear a hurdle and provide a reason to get it. If you are an unauthorized possessor, you are simply a thief holding stolen property."
He went on to explain that disclosing classified information would reasonably be expected to damage national security.
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"A subpoena does not limit the receiving party’s use additional people (attorneys, clerks, mail rooms) to fulfill the production [sic]," tweeted Stzrok.
"Third, the government may need to prove the expected damage. A defense attorney might argue, well, if these documents are so sensitive, why did you allow my client and all these other unauthorized people to sort through them? They’re obviously not really that potentially damaging," he asked. "Additionally, a similar argument might apply to the speed of the government’s action: you say these documents are so terribly sensitive? Then why did you wait a year to come and get them when you believed they were in an unauthorized place?"
Read the full thread here.
