When you do what we do here, you are going to be criticized, fairly and unfairly. When the criticism comes from a crank, my inclination is to ignore it. It is pointless to argue with cranks. They and those who listen to them can’t be reasoned with, and you look foolish trying.

I’ll risk looking foolish, though. A number of friends have brought to my attention that I’ve been attacked by Jack Posobiec on Twitter, in some podcast, and at Human Events (which I didn’t know was still out there). I know who Posobiec is but (for that reason) don’t pay him any mind. I’ve been taking some much needed downtime, but even if I were dialed in, I wouldn’t have seen this crap unless someone pointed me to it. Calling it to my attention is a well-meaning nudge that I should defend myself. So I’m responding . . . but with the misgivings of one who knows it’s a futile exercise.

I am guilty, it seems, of “never Trumper” hypocrisy. I’m a peculiar breed of never-Trumper – the sort who, however reluctantly, voted for Trump twice and penned an endorsement of his 2020 reelection bid (subtitled, “Just look at the alternative”). I won’t quibble about the label, though, because I do think he should have been impeached, convicted, and disqualified from future office over the post-2020 election grief. I wouldn’t vote for him again or suggest that others do so. As for hypocrisy, the accusation stems from my opining that the former president’s illegal retention of national-defense intelligence appears indefensible; according to Posobiec, that cannot be squared with my position eleven years ago, when I allegedly “defended” then-President Obama when he was accused of “declassifying and leaking military information.”

I’ve highlighted “the former president” and the “then-president” in the last passage. It’s a rudimentary, bright-line distinction, even if it’s lost on Posobiec.

Here’s the background. During June 2012 – Hey Jack, try to keep up: That means Obama was president at the time – Obama himself was credibly accused of causing classified national-defense information to be leaked to the New York Times – specifically, about (a) a “kill list” of suspected terrorists Obama had signed off on killing or capturing, and (b) cyberattacks against Iran that Obama had authorized and accelerated. The reason for the leaks was obvious: Election Day was just five months away. Running for reelection, the president wanted voters concerned about national security to believe he was tough on both jihadists and their top state sponsor, but he also wanted his progressive base to believe he was personally engaged in minimizing war carnage and bringing Iran to the negotiating table.

Sensing Obama’s political vulnerabilities, senior Senate Republicans pushed Attorney General Eric Holder to name a special counsel to investigate the leaks. In PJ Media, I countered that this GOP gambit was pointless and counterproductive.

The column speaks for itself. But note: I never said disseminating national-defense information was not a crime, and I vigorously contended that mishandling sensitive intelligence for personal reasons (in Obama’s case, political advantage) demonstrated a president’s unfitness for office. My overarching point, however, was that the special counsel investigation Republicans were seeking would get nowhere legally and would undermine the imperative of holding Obama accountable politically.

That is, (a) any special counsel would report ultimately to Obama’s attorney general, Eric Holder; (b) this would ensure that there would be no criminal charges – and certainly none before the imminent election; but (c) the existence of a criminal probe would enable the Obama Justice Department to reject congressional demands for information about the classified leaks, rationalizing that disclosure would compromise the ongoing investigation; ergo, (d) if congressional Republicans abdicated to the Obama Justice Department in this manner rather than conducting an investigation themselves, the public would never learn the key details of the scandal; (e) Holder had already recognized these advantages and thus ostensibly appeased the Senate Republicans by ordering a leak investigation to be conducted by two district U.S. attorneys who reported to him (Ronald Machen and, yes, Rod Rosenstein); and (f) even if the prosecutors could identify individual leakers – which was highly unlikely because they were never going to subpoena the Times reporters, especially when Obama obviously wanted these stories leaked – the sitting president had undeniable authority to declassify information, meaning the leakers would claim that the information they’d disseminated was not classified and was publicized at the president’s direction.

That last point was the same one I’d made during the Valerie Plame farrago. I had pointed out that if President Bush or an authorized underling had instructed Scooter Libby or any other official to provide classified intelligence about Iraq to a journalist, then that information would effectively have been declassified (which explains, in part, why the special counsel, though hell-bent on making a case against Libby, brought no classified-information charges). I supported President Bush and opposed President Obama, but the controlling law doesn’t hinge on whether or not I happen to like the president.

Nonetheless, it is on this point of declassification in connection with Obama that I’ve supposedly contradicted myself when it comes to Trump. I began what Posobiec curiously describes as my “defense” of Obama by asserting that the episode showed his unfitness for the presidency:

So we know where the leaks came from. Now we’re down to putting a particular name on particular leaked information. Relatively speaking, that is a matter of close to zero importance. The lesson here — of far more political than legal significance — is that President Obama is a reckless custodian of the nation’s secrets. That is yet another good reason why it is so important to defeat him come November. [Emphasis in original]

I then added the lines on which Posobiec seizes:

The rest — who said what — is details. It’s the guy in the Oval Office who sets the tone. And that guy, by the way, is fully empowered to declassify whatever information he chooses to declassify, no matter how sensitive, no matter how damaging its disclosure. So if it turns out that Obama effectively approved the leaks, they are probably not actionable disclosures of classified information anyway. [Emphasis added in the last three sentences.]

How inane to compare this to Trump’s situation.

To begin with, Obama was president when (I believe) he caused the dissemination of classified information. By contrast, when (as the indictment alleges) Trump willfully retained classified information and refused lawful demands for its return, he was not “the guy in the Oval Office.” At the critical times in these two incidents, then, Obama had unlimited power to declassify and unquestioned authority to determine what uses of intelligence were in the best interest of the United States, while Trump had no declassification power at all and no authority to determine how the handling of intelligence could best serve the national interest.

There is no doubt that, when he was president, Trump, like Obama in 2012, was “fully empowered to declassify whatever information he [chose] to declassify, no matter how sensitive, no matter how damaging its disclosure.” But all the credible evidence indicates that Trump did not declassify the Mar-a-Lago documents during his term. Had he done so, then he would have moved in court to quash the grand-jury subpoena he received in May 2022. Indeed, he would have filed a motion for the return of property right after the August 2022 Mar-a-Lago search, supported by a sworn affidavit in which he explained when and how he had declassified the documents (see Rule 41(g)). He didn’t do these things because he hadn’t declassified the documents and he knew classified agency intelligence reports were not even presidential records, much less his personal property (see here and here).

Because of that, Trump had his lawyers comply with the subpoena (or at least appear to comply; it is alleged that he misled them about the location and number of classified documents). Trump never claimed to the Justice Department, the FBI, or the National Archives and Records Administration that he had declassified any of the Mar-a-Lago documents; nor did he instruct his lawyers to posit such a claim. To the contrary, on June 3, 2022, his lawyers presented the FBI with a package of 38 documents carefully wrapped in a manner that conveyed their understanding that the documents were classified. In conjunction with the package, the lawyers provided a sworn statement for transmission to the grand jury, setting forth no declassification claim. There is, moreover, no written declassification order even though the Presidential Records Act, on which Trump now purports to rely, requires such an action to be documented (see Section 2203(a)). And Trump is recorded, after leaving office, acknowledging that he possessed “highly confidential, secret” information but was no longer empowered to declassify it – statements that would make no sense if he’d declassified the documents (regardless of whether the government has recovered the classified document to which he was referring in the recording).

It is also worth noting that, although what Obama did in 2012 was politically self-serving, as president he would have been positioned to argue that he had the constitutional authority to disseminate defense information and believed doing so had been in the national interest. (At the time, Obama denied having anything to do with the leaks; this was not credible, but we are talking here about what defenses would have been available to him if he had been investigated or charged.) By contrast, as a former president, Trump had no plausible claim that his retention of highly classified defense information at Mar-a-Lago was even lawful, let alone in the national interest.

Note that, in writing that 2012 column, I was careful to qualify that, if Obama approved the leaks, they “probably” would not be actionable disclosures of classified information. I had to say “probably” because, technically, it would have been inaccurate to say the leaks certainly were not actionable.

There were several legal reasons for this. There was no point elaborating on them at the time; the gist of the column was that Republicans should avoid legal rabbit holes and focus on holding Obama politically accountable. But I’ll explicate now: (1) As had been extensively discussed in the Plame investigation, there are criminal statutes that deal specifically with classified information (see, e.g., Section 798), so they could not have been used for prosecution if information had been declassified before a leak; nevertheless, (2) the Espionage Act (Section 793) refers to “national defense information” not “classified information,” so declassification would not be an airtight legal defense; yet, (3) if the president had declassified intelligence because, he’d claimed, the national interests were best served by its public dissemination, no prosecutor would charge an underling who’d followed the president’s direction and leaked the information to the press; and (4) while hypothetically conceivable, it would be futile, practically speaking, to contemplate prosecuting the president himself because: (i) sitting presidents may not be prosecuted under DOJ guidelines; (ii) it is highly unlikely that any prosecutor would charge the president for disseminating national-defense information if the president had determined, as chief executive, that its dissemination was in the national interest (i.e., proving criminal intent would be impossible); and (iii) if, as expected, Obama won reelection, the statute of limitations would have lapsed by the time he was out of office in 2016, so even if a criminal case could technically be made, it would be time-barred and thus not actionable.

As anyone with basic reading skills can see, I didn’t defend Obama. I condemned him. I said the episode demonstrated that he should not be president. And that was two years before I wrote a book arguing that Obama had committed a slew of impeachable offenses, even if the political case for a successful impeachment under the Constitution’s daunting standards had not been established.

Apparently they don’t have editors at Human Events anymore. Posobiec’s headline (the screed is attributed to someone named C. G. Jones, a self-described “journalist and fiction writer”) also faults me for having said “presidents cannot be prosecuted for obstruction,” but Posobiec includes no related discussion. Since there is also no discussion of obstruction in the writings of mine that he cites, it’s not clear what he’s talking about (shocking as that may be).

Let me try to help. If I said someplace that Obama should not be charged with obstruction, that would not be a surprise. I’ve written many times that a prosecutor has no authority to charge a president with obstruction over acts that the president was lawfully empowered to take (even if the prosecutor suspects the acts were taken for corrupt reasons). Thus did I argue, many times, that special counsel Robert Mueller could not prosecute then-President Trump for obstruction in connection with Russiagate (see, e.g., here, here, here, here, and here). I’ve also posited several times that, because there is no evidence tying Trump actionably to the violence of the Capitol riot, special counsel Jack Smith would be wrong to charge him for obstruction of Congress based on his lawful though disingenuous reliance, as president, on a flawed legal theory – to wit, that the vice president had authority to invalidate state-certified electoral votes (see, e.g., here, here, and here).

That doesn’t mean the president is immune. It means the Constitution’s separation-of-powers structure provides that a president’s comeuppance for abuses of power is political (i.e., a matter for Congress and the voters), not legal. The Framers were wise enough to grasp that the chief executive could not be checked by his subordinates – let alone by federal prosecutors, a category of subordinate executive official that did not exist when constitutional governance began in 1789.

Of course, all of that assumes we are talking about the incumbent president, not a former president.

At the time he allegedly committed the acts pled in the federal indictment, Donald Trump was no longer the president. Legally speaking, it doesn’t matter whether Trump and Posobiec refuse to accept that Trump lost the 2020 election. In fact, it wouldn’t even matter if we assume, for argument’s sake, that they have a colorable basis for refusing to accept Biden’s victory (though they don’t). As a matter of constitutional law, a presidential term is four years long. Trump’s term ended at noon on January 20, 2021. Before another term can commence, an incumbent must first (a) be recognized by Congress as having won a state-certified Electoral-College majority, and (b) take the oath that the Constitution requires. Only Joe Biden has fulfilled those mandatory conditions. Trump has not, and could not. Consequently, even if he and his blindest supporters believe he should be president at this moment, and should have been endowed with the powers of the presidency throughout the last two-and-a-half years, the remorseless fact is that he has not been president since Biden took the oath. As of noon on January 20, 2021, Trump was a former president, lacking the powers and prerogatives of the presidency. He was not authorized to retain classified intelligence, nor empowered to declassify it. His situation was not comparable to that of Obama in 2012, nor to that of any other incumbent president in history.

Anyway, I don’t want to see a former American president tried, convicted, and imprisoned. It would be terrible for the country, in many ways. Never-Trumper or not, I wish that Trump would apologize for retaining the documents and misleading the grand jury, that Biden would pardon him, and that we could move on in 2025 with a president who is neither Trump nor Biden. But my political and emotional preferences are irrelevant. The law is what it is.