Donald Trump’s allies are playing the hits in a new key in a desperate effort to defend him from criminal charges for hoarding classified documents: Blame Obama.
Trump adviser Stephen Miller’s America First Legal is making the absurd claim that an Obama-era memo could have given Trump the impression he was allowed to do whatever he wanted with classified documents belonging to the government.
AFL claimed on Tuesday to have filed a Freedom of Information Act request for a memo signed in March 2015, following a Russian cyberattack on high-level Obama administration officials the previous year. The memo established a committee known as the "Committee for Presidential Information Technology,” consisting of White House staff and national security officials who were tasked with offering guidance to “maintain the President’s exclusive control of the information resources and information systems provided to the President, Vice President, and Executive Office of the President.”
A rational way to read that is that this committee was meant as a security measure to advise the president and top-level officials on maintaining control of documents so that authorized people could review and share them without unauthorized people, like hackers, accessing them.
One ... other way to read the memo is that it allows the president to do literally whatever he or she wants with classified documents. Which is what Trump has argued as part of his defense in the federal case brought by special counsel Jack Smith.
And of course that's also what AFL is going with.
Although the federal indictment states that “Trump was not authorized to possess or retain [the] classified documents” after he left the White House and the feds asked for them back, AFL says the Obama-era memo “may have created a reasonable belief in President Trump that he, in fact, had such authority.” This, they argue, “is consistent with America First Legal’s whitepaper contending that the President of the United States has absolute authority over presidential papers.”
The group also argues that other counts in the indictment may be “baseless” if it can be proven that the documents Trump refused to hand over are still preserved on digital systems used by the Committee for Presidential Information Technology.
Essentially, they’re trying to spin the “exclusive control” phrase in the Obama memo into a legal basis to support Trump’s belief that he had “absolute authority” over White House documents.
To call this argument a “Hail Mary” doesn’t do justice to Hail Marys. This is a Hail Mary thrown from the 1-yard line, with your eyes closed, off your back foot, into triple coverage.
Because although Miller’s group may think it's found Trump a "get-out of jail free" card, here’s what the Obama memo does not say: It doesn't say the president has absolute authority to do literally whatever he or she wants with classified documents. It also doesn’t say the president can hoard such documents in his private bathrooms and ballrooms after he leaves office. And it certainly doesn’t say he can spurn multiple federal demands to return those documents or, allegedly, enlist underlings to help him do so.
Seems like Trump’s still on the hook.