Trump had no legal right to take & keep classified or unclassified

documents from the United States Government

That’s the law, period!

Eric Foster
8/28/2022
Trump had no legal right to take & keep classified or unclassified documents
from the United States Government – That’s the law, period!
Let’s start with this clear fact under Federal Law. Donald Trump has no legal rights to house, control or
take any declassified or classified federal records from his time in the White House after he left the
position of President on January 20, 2021 at 12:01pm, via 13 specific Federal Statutes governing records
and records management. This is clear, the laws aren’t debatable, but is not clearly reported in the
Traditional Media and ignored by both the Conservative Mainstream Media and Radical MAGA GOP
Media.

Purposeful misdirection and lies by Trump about classification or declassification of Federal records
started this cycle of reporting on his criminal acts. Traditional Media has dutifully reported on it, with a
varied level of experts, lawyers, constitutional scholars and detailed assessments of the various Federal
Statutes affected by Trump’s actions, but they have deferred too much to reporting based upon his
framing of the issues, which indirectly gives him some cover but really muddles the immediate impact of
his criminal actions. Conservative and Radical MAGA GOP Media are just lying about the laws in play,
Trump’s criminal culpability, the Federal Rules of Criminal Procedure, the Constitution and any other
excuse they can make up. Traditional media has evolved in their coverage, yet still waffles on the clarity
of the laws Trump broke and that can’t take all records means all records, regardless of classification
status. The traditional media also seems stuck in a debate on if Trump’s actions can be considered
criminal or if somehow his claims of “Executive privilege” or “Attorney-Client privilege” or the powers
of the Presidency are permanent. They aren’t and shouldn’t be entertained as plausible or real. As I
mentioned earlier, there are 13 Federal Statutes that define Governmental records, ownership of
Governmental records, procedures for handling Governmental records and criminalization of illegal and
improper activities relating to Governmental records (none exempt the President from application of or
exemption from these statutes). These statutes include:

1. The Presidential Records Act of 1978 (44 U.S.C. Ch. 22)1,

2. Key PRA section2 - U.S. Code §2202. Ownership of Presidential records: The United States shall
reserve and retain complete ownership, possession, and control of Presidential records; and such
records shall be administered in accordance with the provisions of this chapter. (Pub. L. 95–591,
§2(a), 11/4/78, 92 Stat. 2524.)
3. The Federal Records Act of 19503 (44 U.S.C. Ch. 31)
4. 18 U.S.C. § 641 - The taking of a public record or document is prohibited4
5. 18 U.S.C. § 27015, The necessary measure of protection for government documents and records
is provided by 18 U.S.C. § 2071. Section 2071(a) contains a broad prohibition against destruction
of government records or attempts to destroy such records.
6. 18 U.S.C. § 13616 & CRM 16667 - The destruction of such records may be reached under this
statute
7. Disposal of Records8 (44 U.S.C. Chapter 33)

1
https://uscode.house.gov/view.xhtml?path=/prelim@title44/chapter22&edition=prelim#:~:text=%C2%A72202.-
,Ownership%20of%20Presidential%20records,(Added%20Pub.
2 https://uscode.house.gov/view.xhtml?path=/prelim@title44/chapter22&edition=prelim
3
https://www.law.cornell.edu/uscode/text/44/chapter-31
4
https://www.law.cornell.edu/uscode/text/18/641
5 https://www.govinfo.gov/app/details/USCODE-2011-title18/USCODE-2011-title18-partI-chap121-sec2701
6
https://www.law.cornell.edu/uscode/text/18/1361
7
https://www.justice.gov/archives/jm/criminal-resource-manual-1666-destruction-government-property-18-usc-1361
8
https://uscode.house.gov/view.xhtml?path=/prelim@title44/chapter33&edition=prelim

ERIC FOSTER 1
 8. Title 18 U.S.C. § 7939: Gathering, transmitting or losing defense information, also know as the
Espionage Act
9. Title 18 U.S.C. § 151910 - Destruction, alteration or falsification of records in Federal
investigations
10. 18 U.S. Code § 192411 - Unauthorized removal and retention of classified documents or material
11. CRM 166312. Protection Of Government Property -- Protection Of Public Records And
Documents
12. 42 U.S. Code § 216213 - Classification and declassification of Restricted Data (under the Atomic
Energy Act of 1954 (P.L. 83703))
13. 44 U.S.C. § 3106 and 36 CFR Part 123014 - Unlawful removal, destruction of records

A President can declassify records via formal process identified under Executive Order 1352615 (the most
recent executive order on classification, was issued by President Obama on Dec. 29, 2009, and revoked
prior classification orders) and as codified under 50 U.S.C. § 316116 (as passed under the Intelligence
Authorization Act for Fiscal Year 1995) but must leave them in Federal Government custody when
leaving office. No Federal employee, including the President, can take records home when they leave the
job permanently. The declassification status of a Federal record doesn’t matter, all records must stay with
the Federal Government, via the Archivist (44 U.S.C. Ch. 22 and Records Management by Federal
Agencies (44 U.S.C. Chapter 31)). The definition of a Federal record and who legally can define a
Federal record is codified under 44 U.S.C. section 330117 as the Archivist and was initially adopted by
Congress into law on October 22, 1968, updated on October 21, 1974 and November 26, 2014. These
aren’t suggestions, they are binding laws that must be adhered to. All parties, including the President and
former Presidents, are bound to follow the same laws and expect the same consequences for their actions.

What’s the defenses communicated by Trump & his team?

Following the pattern of deification and absolutism regarding their leader and the applications of law to
their political side, Trump defenders in the former Republican party (now Radical MAGA American
Dictatorship party) has loosened every possible way to justify Donald Trump and his staff’s criminal
conduct. In addition to blaming Democrats, the laws, the Traditional media, Santa Claus and the Easter
Bunny, they have even invented new Article II Constitutional powers that only rest with Trump. Mike
Davis, former law clerk for Justice Neal Gorsuch, on Fox News today18 made the following Anti-
American arguments; “And again, what I’ve been saying since August 8th, the president has the absolute
constitutional authority to declassify anything he wants for any reason he wants, and he doesn’t have to
get permission from any bureaucrat at the National Archives to do that. That is confirmed by a 1988
Supreme Court case, Department of the Navy versus Egan (484 U.S. 51819). So, there goes the underlying
potential charge for espionage that was in this warrant.”

• Mike’s interpretation isn’t what the Majority wrote and is a purposeful misstatements about the
text and intent of the decision. A great review of the case was completed by Louis Fisher, a
Constitutional Law Specialist who actually read the majority opinion as written only. The case

9 https://www.law.cornell.edu/uscode/text/18/793
10
https://www.law.cornell.edu/uscode/text/18/1519
11 https://www.law.cornell.edu/uscode/text/18/1924
12 https://www.justice.gov/archives/jm/criminal-resource-manual-1663-protection-government-property-protection-public-records-and
13 https://www.law.cornell.edu/uscode/text/42/2162
14 https://www.law.cornell.edu/uscode/text/44/3106
15 https://www.archives.gov/isoo/policy-documents/cnsi-eo.html
16 https://www.law.cornell.edu/uscode/text/50/3161
17 https://www.law.cornell.edu/uscode/text/44/3301
18 https://video.foxnews.com/v/6311442348112#sp=show-clips
19 https://supreme.justia.com/cases/federal/us/484/518/

ERIC FOSTER 2
 was originally one of statutory construction: what was the intent of Congress when the executive
branch grants and revokes security clearances (whether the Merit Systems Protection Board
(Executive branch Board) has authority by statute to review the substance of an underlying
decision to deny or revoke a security clearance by the Navy (Executive branch agency), in the
course of reviewing an adverse action)20? Justice Blackmun and a 5 to 3 majority focused on
statutory concerns and the court concluded that Congress had not intended to permit such review.
Per Fisher’s analysis and the actual text, the majority, did not find in the President any plenary or
unchecked power over classified information. The majority wrote on page 530 of the opinion of
the court21: “unless Congress specifically has provided otherwise, courts traditionally have
been reluctant to intrude upon the authority of the Executive in military and national security
affair”. They also cited the following cases as precedent to support this conclusion: See, e. g.,
Orloff v. Willoughby, 345 U. S. 83, 93-94 (1953); Burns v. Wilson, 346 U. S. 137, 142, 144
(1953); Gilligan v. Morgan, 413 U. S. 1, 10 (1973), Schlesinger v. Councilman, 420 U. S. 738,
757-758 (1975); Chappell v. Wallace, 462 U. S. 296 (1983).

Mike then went further in this illegitimate & criminally complicit argument; “Second point, the president
has the sole statutory authority to make the determination whether a record is a personal record that
belongs to him or a presidential record that goes to the bureaucrats at the national archives and almost
certainly gets sent back to the president to put in the former president’s library and that is confirmed by a
2012 decision by an Obama judge”. Davis started this “theory” on a Twitter thread on August 11, 2022 –
“The President of the United States has both the constitutional (and statutory) power to declassify
anything he wants. If President Trump left the White House with classified records, they are declassified
by his actions. Period22. In his worldview, the Presidency is an elected Dictatorship, free from judicial
review, as defined in Marbury V Madison and legislative powers of checks and balances as defined in the
Constitution. This is a theory that Mike, Trump, Bannon, nor any defender of these crimes would extend
to the other 45 Presidents in US history or any Democratic President after President Biden, because it’s
unconstitutional, illegal and destroys the foundation of our Governance model.

Where do we go next?
The National Archives takes legal and exclusive possession of all Presidential records at 12:01pm &
houses classified & unclassified records in secured sites23. Trump’s criminal culpability started on
1/20/2021 and has escalated since 1/20/21. Now, despite what Trump’s Attorney cited in a May 25, 2022
response to the DOJ (section 2, Presidential Actions involving classified documents are not subject to
criminal sanction), the President is an official by virtue of his office and he’s subject to the same laws that
every other Federal employee. There’s no law or Constitutional Article or Amendment that confers
absolute immunity from criminal actions by the President, so to argue such is a betrayal of the
Constitution.

Now we know that Trump stole thousands of Federal records, as defined by the 13 statutes I cited earlier.
We don’t have a breakdown of the classified documents from the June 3, 2022 meeting related to the May
11, 2022 subpoena for records and August 5, 2022 search warrant approval and August 8, 2022 executed
search for records, but we do have a record for the January 2022 retrieval. The January 2022 records
retrieval produced 15 boxes. A preliminary triage of the documents revealed classified documents in 14 of
the 15 boxes and the following approximate numbers of classification markings:

20 Judicial Interpretations Of Egan Louis Fisher Specialist in Constitutional Law, November 13, 2009 LL File No. 2010-003499
21 https://www.loc.gov/item/usrep484518/ & https://supreme.justia.com/cases/federal/us/484/518/
22 https://twitter.com/mrddmia/status/1557799017592922112?s=20&t=HLu_5a8JTvV7yz1zY7omVQ
23 https://www.npr.org/2022/08/13/1117297065/trump-documents-history-national-archives-law-watergate

ERIC FOSTER 3
 • 184 unique documents bearing classification markings, including
• 67 documents marked as CONFIDENTIAL,
• 92 documents marked as SECRET, and
• 25 documents marked as TOP SECRET.
Further, in the search warrant affidavit, FBI agents observed markings reflecting the following
compartments/dissemination controls:
HCS - HUMINT24 (Human-source Intelligence) Control System
FISA,
ORCON25 = “originator control”
NOFORN26 = “no foreign nationals” (should see these documents)
SI. = COMINT (communication intelligence, or intercepts) Special Intelligence27

The agent requesting the search warrant stated “Based on my training and experience, I know that
documents classified at these levels typically contain NDI”, which adds additional weight to the
criminality of Trump’s actions and those who assisted Trump in this crime. Despite the dismissive and
purposeful lying done by Trump defenders, the law and executive orders dealing with Sensitive
compartmented information (SCI), classification levels and classification prohibitions and limitations are
extremely clear (the National Security Act of 1947, as amended; Executive Order (EO) 12333, as
amended; EO 13526; EO 13549; EO 12829; EO 12968, as amended; 32 CFR Part 2001; 32 CFR Part
2003, 32 CFR Part 2004; and other applicable provisions of law). The criminal theft of the human source
intelligence file violates another statutory law, 50 U.S. Code § 3121 - Protection of identities of certain
United States undercover intelligence officers, agents, informants, and sources.

Despite this detailed list of criminal activity by Donald Trump and his co-conspirators, he was afforded
an extremely generous level due process, far and above the 4th amendment, 5th amendment and the
Federal Rules of Criminal Procedures guidelines would normally allow. Other Federal employees,
members of Congress and Executive Branch appointees would have already been arrested, indicted and in
trial prep by this point.

In direct comparison to how African Americans, Hispanic Americans, Indigenous Americans and other
Non-White Americans are treated by law enforcement and the criminal justice system, Trump has been
given a level of deference that he would seek to exclude from other Americans. Trump has publicly
demanded that his former Attorney General’s Jeff Sessions & Bill Barr arrest and jail28 President Biden,
President Obama, President Clinton, President Bush 43, Hunter Biden, former FBI Director James
Comey, James Clapper, Sec. Hillary Clinton, Speaker Pelosi, Congressional Dems, Peter Stork, social
justice protestors, non-friendly media organizations29 & he demanded for most of these people to be
executed for Treason. He’s called the 81,268,924 Biden voters, 2,905,679 3rd party POTUS voters &

24
https://www.dni.gov/index.php/what-we-do/what-is-intelligence
25 https://www.dni.gov/index.php/who-we-are/organizations/ic-cio/ic-cio-related-menus/ic-cio-related-links/ic-technical-specifications/orcon-
need-to-know-access
26 https://www.dni.gov/files/documents/FOIA/DF-2015-00044%20(Doc1).pdf
27
https://www.dni.gov/index.php/what-we-do/what-is-intelligence
28 https://www.washingtonpost.com/nation/2018/11/29/an-incomplete-list-all-people-donald-trump-has-said-should-be-jailed/;

https://www.politico.com/news/2020/10/07/trump-demands-barr-arrest-foes-427389;
https://www.nytimes.com/2022/08/10/us/politics/trump-fbi-justice-department.html;
https://www.forbes.com/sites/mattperez/2020/06/01/trump-tells-governors-to-dominate-protesters-put-them-in-jail-for-10-
years/?sh=a69a1a913fb9; https://apnews.com/article/government-and-politics-donald-trump-europe-house-elections-
14755a1573c59c0eea0e46bec596d067; https://www.nbcnews.com/politics/white-house/lock-them-trump-turns-his-attention-enemies-his-
state-n988711
29 Kalb, Marvin. Enemy of the People: Trump's War on the Press, the New McCarthyism, and the Threat to American Democracy. Brookings

Institution Press, 2018.

ERIC FOSTER 4
23% of Trump’s 74,216,154 voters who don’t stay loyal to him30 as being disloyal to him as America31.
Donald Trump has personally violated every aspect of the American criminal justice system and has
openly demanded that the same justice system he says is “treating him poorly” persecute, arrest, jail,
convict and execute Americans who oppose him. This is beyond credulity; this is open destruction of the
American system of justice. Trump and his defenders need to be identified for their actions and called out
for it and in this case, the law needs to be administered absent of fear of Trump and his supporters.

Additionally, when Trump & his acolytes defame President Obama & his Presidential records, Trump and
his team are lying. Per the National Archives, they took immediate possession32 of and have maintained
100% control of President Obama’s unclassified & classified records since 1/20/17 at 12pm. Unclassified
records are stored by the National Archives in Chicago area, at their facility, not President Obama’s
home. His classified records are stored in a separate National Archives facility in DC. President Obama
hasn’t been involved in any of the decisions on his records. Please don’t let team Trump flood the zone
with easy to identify lies.

The National Archives and the Department of Justice tried to get his compliance without going through
the criminal process. The National Archives negotiated, pleaded and begged Trump to return the stolen
Federal and Presidential records for roughly a full year. When he continued to violate these laws and
unlawfully retain Federal and Presidential records, the DOJ followed the Federal Rules of Criminal
Procedures (FRCP) Rule 1733 to get a Grand Jury Subpoena for the records and a second Subpoena for
video evidence, to determine if there was continued criminal activities taking place. After reviewing that
and conducting witness interviews, the DOJ was able to demonstrate and meet the 4th amendment
probable cause standard for a Judge approved search warrants, based upon a preponderance of evidence
of criminal activity and probable cause of ongoing criminal activity, under Rule 4134 of the FRCP. While
Trump and his defenders have attacked the legally defined processes in the FRCP and the covering
statutes, Trump has the right to file for the unredacted release of the underlying materials under Rule 41,
but they haven’t. Trump can release the warrant notice, the subpoena from earlier this year, the docs list
and any recordings, orders or other documentation to show his innocence, but he hasn’t. His “special
master lawsuit” is meritless/ Donald Trump can’t apply “Executive privilege” or “Attorney-Client
privilege” to Federal records or Presidential records as a method to retain personal ownership of those
records because all records (declassified and classified) are property of the United States Government, as
is defined in 44 U.S.C. Ch. 22 and 44 U.S.C. Ch. 31. It is strongly encouraged that the traditional media,
while you may cover his sham lawsuit, please don’t give him any benefit of doubt, get trapped by his lies
or dismiss the Statutes that he violated starting on 1/20/21, when he stole classified and unclassified
records.

This time and accumulation of criminal conduct requires criminal prosecution on all available charges and
for all persons found to have assisted in this criminal enterprise. The size and scale of this criminal
enterprise may reach the level of RICO activities and that needs to be investigated as well. Trump
received a higher level of protection from his own criminal conduct by the DOJ and in multiple States
(New Jersey, Michigan, Nevada, Arizona, Wisconsin, New Mexico, Pennsylvania, Colorado) where he
could be indicted for election, campaign finance, illicit business practices and financial fraud crimes, in
part, due to fear of how his 74,216,154 voters will react. The problem with deferring to him, ignores the

30
https://www.axios.com/2021/12/09/trump-hunt-disloyal-republicans
31 https://www.bbc.com/news/world-us-canada-49417157; Jewish Voters Back Biden After Trump Says Voting Democrat Is 'Very Disloyal':
Poll https://www.newsweek.com/jewish-voters-biden-trump-1544794 & https://www.theatlantic.com/magazine/archive/2022/01/january-6-
insurrection-trump-coup-2024-election/620843/ & https://www.clevelandjewishnews.com/jta/trump-doubles-down-on-disloyalty-comments-
saying-that-all-democratic-voters-not-just-jews-are/article_19bcf46b-3cf9-549a-928c-9c4f5e20a399.html
32
https://www.archives.gov/press/press-releases/2022/nr22-001
33
https://www.law.cornell.edu/rules/frcrmp/rule_17
34
https://www.federalrulesofcriminalprocedure.org/title-viii/rule-41-search-and-seizure/

ERIC FOSTER 5
81,268,924 President Biden voters and the 2,905,479 3rd party POTUS voters, who want justice and are
tired of the weigh given to his voters as if we and the law, doesn’t exist equally. Do the laws exist to deter
criminal acts and provide criminal penalties if violated? Is every person equal? Do the 81,268,924 Biden
voters and 2,905,479 3rd party voters’ matter like Trump’s voters? If the answers to all of these answers
are yes, then criminally indicting Trump is the legally correct outcome and practically correct outcome.

ERIC FOSTER 6