Milley at root of Trump charges

A report on Chairman of the Joint Chiefs of Staff Gen. Mark Milley by the New Yorker’s Susan Glasser in July 2021 that alleged that former President Donald Trump and his administration were planning on launching an attack on Iran’s nuclear program that he fought to stop in the closing days of the Trump administration appears to have touched off the classified documents case against Trump.

In the account by Glasser, the article states: “The last time that General Mark Milley, the chairman of the Joint Chiefs of Staff, spoke with President Donald Trump was on January 3, 2021. The subject of the Sunday-afternoon meeting, at the White House, was Iran’s nuclear program. For the past several months, Milley had been engaged in an alarmed effort to insure that Trump did not embark on a military conflict with Iran as part of his quixotic campaign to overturn the results of the 2020 election and remain in power. The chairman secretly feared that Trump would insist on launching a strike on Iranian interests that could set off a full-blown war.

Glasser said the report was compiled from interviews with administration officials: “This account of a behind-the-scenes struggle over Iran involving Milley and Trump—a secret backdrop to the public drama unleashed by Trump’s unprecedented refusal to accept the Presidential-election results—comes from some of the nearly two hundred interviews, with a variety of sources, that I have conducted along with my husband, the Times reporter Peter Baker, for a book on the Trump Presidency that will be published next year. Some of the other details reported here about Milley’s actions have been disclosed in recent days by the authors of two new books about Trump and 2020—Michael Bender, of the Wall Street Journal, and Philip Rucker and Carol Leonnig, of the Washington Post—and been independently confirmed by me. Milley has not addressed the revelations publicly.

In the report, in which Milley called Trump “Hitler,” Milley had reportedly had conversations with the Joint Chiefs about countermanding any orders Trump might give to launch such an attack: “Milley repeatedly met in private with the Joint Chiefs. He told them to make sure there were no unlawful orders from Trump and not to carry out any such orders without calling him first…

In the days around the interview, an author for former White House Chief of Staff Mark Meadows met with Trump asking him about the plan to attack Iran for an autobiography by Meadows, and in response to the New Yorker article. 

In the federal indictment of Trump, prosecutors included a July 2021 recorded conversation Trump had with the authors and publisher, in which he stated, “Look. This was him,” referring to Milley and a Defense Department contingency to attack Iran. He added, “They presented me this — this is off the record, but — they presented me this. This was him. This was the Defense Department and him.”

According to the Guardian’s Hugo Lowell on May 31, 2023, “the July 2021 meeting that was recorded came shortly after Trump was incensed about news reports that Milley had urged him not to attack Iran in the final weeks of his presidency.”

The New Yorker piece by Susan Glasser portrayed Trump and his advisors pushing for war with Iran, allegations Trump appears to be responding to in the recording. So, there was a disagreement over who was truly producing plans to attack Iran. 

In the recording, Trump clarified that there was a Defense Department plan, which would not be unusual to have contingencies drawn up dealing with an adversary state like Iran, in the event of an emergency. Meadows ultimately referenced the plan in his book, Chief’s Chief

Here, Trump appears to be stating that the military are the ones who come up with the plans for how to attack and defeat enemy countries in the event of war, and was rebutting the claim that there was a push for war. 

In fact, there was no attack on Iran to destroy its nuclear program in 2020 after the election of President Joe Biden, and no reported orders by Trump to engage in any attack that generals then refused to follow. Just speculation that Trump might have ordered such an attack, and Glasser’s report that Milley had apparently developed his own idea for what to do to in order to subvert any such attack on Iran if it were ordered, which it wasn’t.

Apparently, the military even has contingencies for how to deal with president whose orders they disagree with. And when you try to set the record straight about orders that were never given, you get indicted for noting the fact that it is the Defense Department that produces military contingencies in case they are needed. In fact, there was a plan to attack Iran if needs be, but it was not produced by Trump.  

Now in an interview with Fox News’ Bret Baier on June 19, Trump said that at the meeting with the book’s publisher, he was not referring to the document itself, but newspaper articles: “There was no document… That was a massive amount of papers and everything else talking about Iran and other things. And it may have been held up or may not, but that was not a document. I didn’t have a document per se. There was nothing to declassify. These were newspaper stories, magazine stories and articles.”

In any event, neither the recording nor the Meadows book appear to divulge the contents of any plan to attack Iran, just that it existed, and that the contingency had been produced by the Defense Department. 

As for whether the specific attack plan on Iran referenced in Meadows’ book was included in the boxes that were removed by the FBI in its Aug. 2021 raid of Trump’s residence, that remains unclear, but it might not matter. Even if it were included, through its mere removal from the White House by the President, it was effectively declassified under his Article II constitutional authority over the executive branch, whether Trump was aware of its specific inclusion or not at the time, simply by possessing it. Equally so if he was aware of its removal, which prosecutors appear to be alleging, Trump’s own statement in the recording that “as president, I could have declassified it… Now I can’t, you know, but this is still a secret” notwithstanding.

 A 2012 decision by U.S. District Judge of the District of Columbia Amy Berman Jackson stated, “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.’… the President is completely entrusted with the management and even the disposal of Presidential records during his time in office…

As for which records are classified, that was up to former President Trump as well, right up until the time he left office. In 1988, in Department of Navy v. Egan, the U.S. Supreme Court clarified that the President’s authority over classification derives from his implicit executive powers, and not any Congressional statute: “The President, after all, is the ‘Commander in Chief of the Army and Navy of the United States.’ U.S. Const., Art. II, 2. His authority to classify and control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position in the Executive Branch that will give that person access to such information flows primarily from this constitutional investment of power in the President and exists quite apart from any explicit congressional grant.” 

Trump didn’t need to be aware of how far-reaching his authority over classified materials was when he left office, as the President’s authority under Article II remains constant during his time in office. He only needed to have been the President when he removed the documents, which he was. And by July 2021, the documents were already out in the open because of the action taken by Trump when he was still the sitting president, whether he was fully aware of the legal ramifications of the documents’ removal or not. 

And so were plans to attack Iran, as evidenced by the July 2021 New Yorker piece by Glasser that Trump was responding to. In the case of Glasser, the report stated that the White House was producing a plan to attack Iran. Trump clarified to Meadows’ publisher that that was not true, that it was the Defense Department that had produced the plan.

Therefore, the question is not whether in July 2021 if Trump was completely aware of federal court rulings and precedents to do with the disposal of presidential records including classified materials when he met with Meadows’ publisher, even if he was unsure whether the documents were still secret. 

The real question is what the act of a sitting President removing documents from their classified setting has on the documents in question. If they were declassified when he left office, they could not have suddenly become reclassified by Trump’s reading of the law in a July 2021 meeting. At that point, under Article II, with Trump out of office, only President Biden could have reclassified them, but he couldn’t, because, if what federal prosecutors allege is true, the documents were already public. 

Robert Romano is the Vice President of Public Policy at Americans for Limited Government Foundation.

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