The Indictment

The question remains, though. In these sad times, no matter how clearly it is shown that the law has been violated, will it matter? What is or is not lawful doesn't seem to be a concern in our politics, nor does it seem to be a concern of many of our politician

It strikes me that responses to the indictment being made by Trump supporters and Republicans, which seem mostly based on tu quoque arguments,

That is why we have the law and courts. At the end of the day, if the courts conclude guilt, the opinion of the public does not matter. America in general might complain about rulings, but we abide by them. Trump will go to jail, many people will insist they don't believe it, but he will suffer the consequences under the law if found guilty. The court of opinion is always a biased rabble of logically inconsistent feelings and emotions struggling for power. Its irrelevant in the face of a country that solidly favors and enforces the law.

Well, I hope you're right. But I think we face a situation where a significant portion of the populace doesn't favor the law, and believes it shouldn't be enforced, in this case as to this individual. That anyone could accept him as credible or honorable mystifies me; he seems a kind of paragon of brazen deceit and selfishness. But there are those who do.

The Court notes at the outset that there is broad language in Armstrong I stating that the PRA accords the President “virtually complete control” over his records during his time in office. 924 F.2d at 290. In particular, the court stated that the President enjoys unconstrained authority to make decisions regarding the disposal of documents: “[a]lthough the President must notify the Archivist before disposing of records . . . neither the Archivist nor Congress has the authority to veto the President’s disposal decision.” Id., citing H.R. Rep. No. 95-1487, at 13 (1978), reprinted in 1978 U.S.C.C.A.N. at 5744. Since the President is completely entrusted with the management and even the disposal of Presidential records during his time in office, it would be difficult for this Court to conclude that Congress intended that he would have less authority to do what he pleases with what he considers to be his personal records.

his personal records

Trump could roll a blunt with those documents for all I care. Neither the DOJ nor NARA have the power to designate documents presidential or personal records. That discretion lies solely with the executive.

It’s not irrelevant if those are his personal records. He can dispose of them as he pleases, according to the constitution and precedent.

Moreover, Moss said, the question of whether the documents were personal or presidential records is beside the point in a case involving the Espionage Act, like the one against Trump.

“Whether as a presidential record or a personal record, the records at issue in this indictment still have classification markings and contain information relating to the national defense,”

There are documents you would be prohibited from sharing even if they had been declassified. Is that your understanding?

...during his time in office...

The case against him is not regarding his time in office. It's about the records he stole, hid, and lied about possessing after leaving office.

Regardless, though, the indictment isn't limited to the PRA or civil remedies available under it. It involves violation of the Espionage Act, obstruction, and other criminal matters.

I’m fairly certain that the president’s authority can override whoever marks documents as classified, unless executive authority is invested in the Dept. of Justice or someone else I am unaware of.

Do you really think Trump walked into the white house and took documents?

I don't believe he was indicted for stealing documents, but for retaining them, hiding them, and lying about having them.

Isn't that exactly what he did? If not, how would you describe what he did?

They are his documents.

Enacted November 4, 1978,[4] the PRA changed the legal ownership of the President's official records from private to public ... The Presidential Records Act was enacted in 1978 after President Richard Nixon sought to destroy records relating to his presidential tenure upon his resignation in 1974. The law superseded the policy in effect during Nixon’s tenure that a president’s records were considered private property, making clear that presidential records are owned by the public.

17. Pursuant to Executive Order 13526, information classified at any level could be lawfully accessed only by persons determined by an appropriate United States government official to be eligible for access to classified information and who had signed an approved non-disclosure agreement, who received a security clearance, and who had a “need-to-know” the classified information. After his presidency, TRUMP was not authorized to possess or retain classified documents.

if Trump is elected, he could make it go away

"what about Hillary?"

The question remains, though. In these sad times, no matter how clearly it is shown that the law has been violated, will it matter? What is or is not lawful doesn't seem to be a concern in our politics, nor does it seem to be a concern of many of our politicians.

Does he? It's as simple as him saying "this is mine" and all the rules about handling and disclosure are out the window?

17. Pursuant to Executive Order 13526, information classified at any level could be lawfully accessed only by persons determined by an appropriate United States government official to be eligible for access to classified information and who had signed an approved non-disclosure agreement, who received a security clearance, and who had a “need-to-know” the classified information. After his presidency, TRUMP was not authorized to possess or retain classified documents.

But during his presidency, Trump was authorized to posses, declassify, and determine as personal records those documents.

(3) The term “personal records” means all documentary materials, or any reasonably segregable portion therof,[2] of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President. Such term includes—
(A) diaries, journals, or other personal notes serving as the functional equivalent of a diary or journal which are not prepared or utilized for, or circulated or communicated in the course of, transacting Government business;
(B) materials relating to private political associations, and having no relation to or direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President; and
(C) materials relating exclusively to the President’s own election to the office of the Presidency; and materials directly relating to the election of a particular individual or individuals to Federal, State, or local office, which have no relation to or direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President.

Plaintiff’s entire APA claim is predicated on the notion that the Archivist of the United States has a statutory duty to make his own classification decision and “to assume custody and control” of all Presidential records. There are a number of flaws with this argument. To begin with, the plain language of section 2203(f) of the PRA does not say what plaintiff claims it does – that the Archivist must assume custody and control of all materials that fall within the definition of Presidential records. Tr. at 29:23–30:2. Rather, it states: “the Archivist of the United States shall assume responsibility for the custody, control, and preservation of, and access to, the Presidential records of that President.” 44 U.S.C. § 2203(f)(1) (emphasis added).

Court construes this language as requiring the Archivist to take responsibility for records that were designated as Presidential records during the President’s term. Even plaintiff tentatively agreed that the obligation to assume custody and control arises after a determination has been made that the documents are Presidential records. Tr. at 30:3–6. If certain records are not designated as Presidential records, the Archivist has no statutory obligation to take any action at all, and there is nothing to compel under the APA.

In order to accept plaintiff’s theory that section 2203(f)(1) of the PRA creates a mandatory duty for the Archivist to assume custody and control of what he or she considers to be Presidential records regardless of how the President designated the documents, the Court would be required to ignore the rest of the PRA’s statutory scheme. This it cannot do. See Chemehuevi Tribe of Indians v. Fed. Power Comm’n, 420 U.S. 395, 403 (1975) (stating that a statutory provision must be “read together with the rest of the Act”).

Section 2203(a) of the PRA directs the President, not the Archivist, to take:

all such steps as may be necessary to assure that the activities, deliberations, decisions, and policies that reflect the performance of his constitutional, statutory or other official or ceremonial duties are adequately documented, and that such records are maintained as Presidential records pursuant to the requirements of this section . . . .

44 U.S.C. § 2203(a). The only reference in the entire statute to the designation of records as personal versus Presidential also calls for the decision to be made by the executive, and to be made during, and not after, the presidency. It provides: “materials produced or received by the President, [and other Executive Office employees], shall, to the extent practicable, be categorized as Presidential records or personal records upon their creation or receipt and be filed separately.” Id. § 2203(b). The PRA contains no provision obligating or even permitting the Archivist to assume control over records that the President “categorized” and “filed separately” as personal records. At the conclusion of the President’s term, the Archivist only “assumes responsibility for . . . the Presidential records.” Id. § 2203(f)(1).8

The Court will grant the motion to dismiss pursuant to Rule 12(b)(1) because plaintiff's claim is not redressable. NARA does not have the authority to designate materials as “Presidential records,” NARA does not have the tapes in question, and NARA lacks any right, duty, or means to seize control of them. In other words, there has been no showing that a remedy would be available to redress plaintiff's alleged injury even if the Court agreed with plaintiff's characterization of the materials. Since plaintiff is completely unable to identify anything the Court could order the agency to do that the agency has any power, much less, a mandatory duty, to do, the case must be dismissed.

To start, presidents also routinely handle documents produced by departments and agencies like the Pentagon and the C.I.A. As agency records, they are instead governed by the Federal Records Act, which has no provision allowing a president to declare any to be his personal property.

The Presidential Records Act states that presidential records do not include “official records of an agency.” A 1993 ruling by the Court of Appeals for the District of Columbia Circuit says the law avoids any “potential definitional overlap” by making clear that if a document qualifies as an agency record, that trumps any possibility it could also be considered a presidential record.

“Certainly anything produced by an agency and given to a president would be considered an agency record,” Ms. Kwoka said.

Barr is a longtime proponent of the unitary executive theory of nearly unfettered presidential authority over the executive branch of the U.S. government.

Trump regularly shredded "both sensitive and mundane" papers while at the White House, at Mar-a-Lago, and on Air Force One,[11][12] despite repeated admonishments from at least two of his chiefs of staff and from White House counsel.[11] His aides had developed special practices and protocols early in his presidency to retrieve the piles of torn paper and attempt to tape documents back together with the help of staffers from the Office of the Staff Secretary or the Oval Office Operations team.[11][13]

I much rather an elected politician than an unelected administrative state, personally.

Trump took classified documents, either out of spite or looking to make a buck somehow (as always),

The equal protection clause, or at the least the general principle underlying it, does give certain power to the tu quoque argument. The requirement is that you treat similarly situated people similarly, and it would be problematic to basic notions of fairness if it could be shown that a Democratic leaning DOJ was prosecuting only Republicans but allowing Democrats to do as they wish for similar conduct. One's political affiliation shouldn't dictate how they're treated.

?NOS4A2
So if I'm following you correctly, Trump (if he so choose to do so) could have

1) Rquested the blueprints for building an H-Bomb (or the nuclear codes or a list of all foreign secret assets or etc),
2) Declared them to be his personal property,
3) Taken them with him when he left office (since they're now his personal property)
4) And then sell them to the highest bidder (or put them on Truth Social)

And all this would be perfectly legal. Am I getting this correct?

Trump could roll a blunt with those documents for all I care. Neither the DOJ nor NARA have the power to designate documents presidential or personal records. That discretion lies solely with the executive.

Trump time and again rejected the advice from lawyers and advisers who urged him to cooperate and instead took the advice of Tom Fitton, the head of the conservative group Judicial Watch, and a range of others who told him he could legally keep the documents and should fight the Justice Department, advisers said. Trump would often cite Fitton to others, and Fitton told some of Trump’s lawyers that Trump could keep the documents, even as they disagreed, the advisers said.

...

Trump’s chances to avoid charges began in early 2021, according to current and former advisers. After Gary Stern, counsel at the National Archives, asked Trump’s team for the return of documents, some of his lawyers and advisers began advising him to return them. National Archives officials were privately baffled at what they viewed as inexplicably recalcitrant behavior and kept asking for answers to no avail.

In the fall of 2021, Alex Cannon, then a Trump attorney, urged the former president to return documents to the National Archives, repeatedly telling him that he was required to give them back, according to people familiar with the matter.

After months of talking to Trump and his staff, Cannon — referred to in the indictment as a “Trump Representative” — told Trump that the National Archives was threatening to go to Congress or to the Department of Justice if he did not return the documents, the people said.

...

Meanwhile, Trump grew angry with his lawyers and chose new lawyers, bringing in Evan Corcoran to handle the matter at the recommendation of adviser Boris Epshteyn.

Shortly after the subpoena arrived, the indictment says, Corcoran and another lawyer met with Trump at Mar-a-Lago and told him he needed to comply.

Such a moron.

Why I am not hearing about the democrats trying to rush through legislation, to prevent anyone found guilty of a criminal act being barred from standing for president?
Why was this gaping hole in USA legislation not corrected, years ago?

Why I am not hearing about the democrats trying to rush through legislation, to prevent anyone found guilty of a criminal act being barred from standing for president?
Why was this gaping hole in USA legislation not corrected, years ago?
— universeness

Because that might be unconstitutional.

I've always been completely sceptical of astrology – until now.

Is there something about the American constitution I don't understand? Is it unamendable by any sitting government? Is a national referendum required to alter the constitution?