Before getting into the weeds, here’s the big picture baseline. All documents and records created within the executive branch are created for the benefit of the head of the Executive Branch, the president.
There is no entity, organization, assembly, institution, person or individual, above the President of the United States. The president holds absolute power and absolute immunity. Everyone within the executive branch works at the pleasure of the president, and all work products are created for his administration. This is the plenary power of the president.
The entire documents case in Florida rests on the principle that another entity supersedes the president within the executive branch. Some unknown, unnamed bureaucracy can override the president and decide for themselves what would be called a “presidential record” and what would be called “classified information.”
Jack Smith, Norm Eisen (pictured left, red tie) and Andrew Weissmann each argue that some other entity rests atop the president and can make this decision.
Judge Aileen Cannon has not determined which constitutional argument is correct, and has told the parties to create jury instructions both ways. The Lawfare crew of Smith, Eisen and Weissmann are going bananas.
[…] Cannon’s first scenario would allow the jury to make a factual determination about whether a former president deemed a record to be personal or official under the PRA. That is nonsensical – presidents are not allowed to designate official records as personal ones, so there is no factual issue for a jury to resolve.
A different set of laws govern the classification process and the rules for handling highly sensitive classified documents — not the PRA. They include Executive Order 13526. One of the authors of this column (Eisen) helped write that executive order. The 11th Circuit has already established that those rules fully apply to former presidents.
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