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Donald Trump’s indictment in the Stormy Daniels hush money case has been getting prime media attention, but it matters far less than one potential federal case that could expose him to great legal jeopardy.
Some cases Trump faces may be relatively minor, hard to prove or purely political, but his holding onto presidential documents places him in what looks like a clear violation of federal law. The facts are beyond dispute.
Prime attention focuses on his keeping highly classified documents with inadequate safeguards. Trump’s hoarding may have endangered national security. The case has also raised new questions about just what information should be classified and kept secret.
Under the Presidential Records Act, a former president must promptly turn over to the National Archives all of his official papers. That allows his successors to know the policies and practices they inherit. The requirement is especially important when the outgoing President Trump prevented an orderly transition to the Biden administration.
The law requires turning over all documents, not only those labeled classified. The most sensitive files can include descriptions of intelligence methods, delicate data about foreign leaders and, worst of all, identification of secret American agents in hostile locations. Was any such information in Trump’s unlocked desk drawer? What did he keep and why?
Trump claims that he had the power to declassify documents, even if it only occurred in his own mind. Without proper public notice, that won’t wash. Could a citizen have obtained them through a Freedom of Information request? Of course not. People wouldn’t even know about their existence. Trump falsely implied his right to personalized declassification.
This case has raised questions about classified documents. Some of the documents found at Trump’s Florida home and at sites controlled by Joe Biden and Mike Pence when they were vice president are likely routine and should not have been classified. But, in Trump’s case, some were obviously highly sensitive.
There’s no question that too many documents are classified, sometimes for reasons far removed from national security. And most of them never lose their protection, even after it is no longer justified.
Knowledge is power, and in their quest to demonstrate their key roles on major issues, some people in Washington like to create classified documents and keep others from seeing them. In a place where turf battles matter, the classified keep-away game is a major weapon. Or officials may classify to make sure their mistakes won’t be uncovered.
Government can use classification as a way of keeping secrets from the people on whose behalf it supposedly operates. Arrogant officials can make decisions affecting Americans based on information, possibly questionable, to which the public has no access. Without transparency, democracy suffers.
Here is where the media comes in. Its job is to reveal the secrets that threaten individual rights or cover up illegal actions. By definition, reporters are outsiders, so they may depend on whistleblowers to reveal the hidden truth. And they must be able to operate free from government control unless directly tied to national security or public safety.
The federal government claims to favor whistleblowers, but that promise is often broken. President Barack Obama pursued them with a vengeance. Republicans tried mightily to uncover the whistleblower who revealed that Trump pressured Ukraine’s President Volodymyr Zelensky in hopes that he would investigate Joe Biden’s son during the 2020 presidential campaign.
Perhaps the most famous whistleblower was Daniel Ellsberg. In 1971, he gave to two major newspapers the Pentagon Papers, documents revealing the government had lied to Americans about the Vietnam War. The government tried to block publication, but the Supreme Court, recognizing press freedom, let the papers print. Federal charges against Ellsberg also failed.
Ellsberg is now dying and has been interviewed about breaking government secrecy. He says that classification “is a protection system against the revelation of mistakes, false predictions, embarrassments of various kinds and maybe even crimes.”
A critic claimed Ellsberg undermined democracy by violating secrecy rules adopted by elected officials. He says those rules can protect those officials “from the possibility that their rivals will pick these things up and beat them over the head with it. Their rivals for office, for instance.” Could his concern explain Trump’s actions?
Long ago, Supreme Court Justice Louis Brandeis made a statement criticizing unwarranted secrecy that has been boiled down to the saying “sunlight is the best disinfectant.”
The First Amendment’s guarantee of free speech and a free press may be broader in the U.S. than anywhere else in the world. It helps protect the people from a government that would hide information from them. The American system supposedly depends on people making their own judgments after hearing both the truth and the lies.
Though not his intention, Trump’s documents violation may have brought new public attention to the use and misuse of government secrecy.