The Trump/Napolitano/Carlson JFK connection

[Roger Odisio]

2 hours ago, Matt Cloud said:

You need to understand what's called the "procedural posture" in litigation -- what stage are we at in this litigation?  All Seeborg did was decline to dismiss MFF's lawsuit before a trial because he found that MFF had stated a reasonably cognizable claim.  He sees support for their claim, yes.  However, I would note that his denial of injunctive relief on those grounds is perhaps telling as to the ultimate disposition of the case.  That is to say, the judge deferred to "national security interests" ultimately, not plaintiffs' claim of what they say is the plain meaning of the statutory text.  The issue you say is settled is the surviving claim in the lawsuit which was otherwise dismissed.  You don't seem to get this.  If it was settled law that Biden had no jurisdiction over leg records, the court would have already granted an injunction compelling NARA to turn over the documents.  There would be no trial, no case to resolve.  But he didn't!  Because it isn't!  It is a question of law which will need to be settled IN THIS CASE.  

You will find, I predict, that the ultimate disposition of this case will result in the judicial branch being unwilling to support a statute by the legislative branch which compels the overriding of the executive branch's prerogative with respect to matters of national security.  That's to say, the executive branch's interests control here, not congress'.  If your description of the law and this case was accurate we would already have the release of these leg records.  But we don't -- because the law is not settled.  

I said I was stopping, but another sleight of hand by you as compelled an answer.

 

Here is you quoting the judge:

 

"Plaintiffs have filed three motions for injunctive relief, seeking preliminary injunctions: ... (3) for NARA publicly to disclose legislative records pursuant to the JFK Act. All three of Plaintiffs motions are denied.  ... Plaintiffs’ third motion fares no better because Plaintiffs are unable to show they will suffer irreparable injury should their motion be denied. Plaintiffs’ general argument that “witnesses are dying” is not sufficient to move the needle, as the records Plaintiffs seek have been withheld for decades. 

 

Yes, the judge denied MFF's filing for a *preliminary injunction* asking NARA to disclose legislative records. *Because* he said MFF had not shown they would suffer irreparable harm if it was not granted.  That's one of the standards for being granted injunctive relief up front, as you know.

 

That is not a finding on the merits, as you also know, despite your attempt to use it that way.  Despite you claiming several times that the judge made no finding, or even offered an analysis, on the merits of the claim about Biden's reach, he in fact did so right in his decision, as I quoted to you. 

 

The judge's denial of a preliminary injunction does *not* indicate he will reverse his finding that Biden does not have jurisdiction over legislative records and refuse to order them released, absent an objection from Congress, should it come to that. 

 

His conclusion about Biden's authority stands in this case, unless it is reversed.  As a result, I believe Bill and Larry are preparing to ask NARA to collect and release all relevant legislative branch records. That will probably fail, but they can ask the judge for such an order to actualize his conclusion.

 

This hasn't happened yet. Don't jump the gun, Matt!   

 

One complication I should mention. In his decision the judge claims that NARA is not the successor to the ARRB. It does not have a mandate to take up the job of releasing records after the ARRB closed its doors. Despite the fact that the Act requires the records to be housed in the newly created JFKA Collection at NARA.  Despite the fact that it is to NARA's Archivist that Act gives the job of determining when all records have been released.  How would she know that unless NARA played an active role in releasing them? According to the judge, does anyone have that role if not NARA? 

 

Seems like that finding by the judge would make it difficult for him to order NARA to collect and release relevant legislative records. 

 

My guess is that it will be difficult for the MFF to get anywhere of much importance in the case  unless the judge's finding that NARA is not the successor to the ARBB is reversed.  Either by him (seems unlikely) or on appeal. 

 

 

 

[Matt Cloud]

17 minutes ago, Roger Odisio said:

I said I was stopping, but another sleight of hand by you as compelled an answer.

 

Here is you quoting the judge:

 

"Plaintiffs have filed three motions for injunctive relief, seeking preliminary injunctions: ... (3) for NARA publicly to disclose legislative records pursuant to the JFK Act. All three of Plaintiffs motions are denied.  ... Plaintiffs’ third motion fares no better because Plaintiffs are unable to show they will suffer irreparable injury should their motion be denied. Plaintiffs’ general argument that “witnesses are dying” is not sufficient to move the needle, as the records Plaintiffs seek have been withheld for decades. 

 

 

Yes, the judge denied MFF's filing for a *preliminary injunction* asking NARA to disclose legislative records. *Because* he said MFF had not shown they would suffer irreparable harm if it was not granted.  That's one of the standards for being granted injunctive relief up front, as you know.

 

That is not a finding on the merits, as you also know, despite your attempt to use it that way.  Despite you claiming several times that the judge made no finding, or even offered an analysis, on the merits of the claim about Biden's reach, he in fact did so right in his decision, as I quoted to you. 

 

The "Sleight of Hand" is yours, not quoting in full what I quoted.  The underlined portion that I quoted states: "Furthermore, the national security concerns raised by Defendants considerably tip the balance of hardships in Defendant’s favor."  I underlined this because it is the ultimate deciding factor that will -- when and if the case is decided on the merits, and it has not been as of today -- resolve the case against MFF.  

 

The judge's denial of a preliminary injunction does *not* indicate he will reverse his finding that Biden does not have jurisdiction over legislative records and refuse to order them released, absent an objection from Congress, should it come to that. 

 

 I never said it so indicated necessarily, only that it implied that the ruling on the prelim injunction, which was based in part on the underlined passage above, suggests that the judge in this case is cognizant of the Executive Branch's national security concerns as the ultimate deciding factor.  That does not portend well for MFF. 

 

The judge has not ruled, despite your repeated attempts claiming he has, on the merits of the remaining issue in this case, i.e. the scope of Congress' ability to compel release of legislative materials relating to the JFKA over and above the Executive's national security concerns.  No such finding has been made.  There is no Final Judgment in this case as of yet.  YOU ARE NOT ACCURATELY DISCUSSING THE CASE.  For now, at least the third time: All that has happened so far is that the court has dismissed all but one claim by MFF and is prepared to allow the remaining claim to be heard -- for a ruling on the merits.  That has not happened yet.  You keep stating it has.  That is wrong.  That's why the document from the court on this issue is entitled:

 

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS AND DENYING MOTIONS FOR INJUNCTIVE RELIEF

 

That's all we have.  No final judgment or order.  It is furthermore not appealable on the ultimate question, which you can rest assured would happen if the January 18, 2024 document was in fact what you keep (erroneously) stating it is, a final judgment. 

 

His conclusion about Biden's authority stands in this case, unless it is reversed.  As a result, I believe Bill and Larry are preparing to ask NARA to collect and release all relevant legislative branch records. That will probably fail, but they can ask the judge for such an order to actualize his conclusion.

 

No decision on the merits here.  It stands for nothing more than the simple proposition that the suit may proceed.  Those aren't the same things -- a suit going forward and a ruling by a district court on the president's Article II authority.  Not even close.  

 

This hasn't happened yet. Don't jump the gun, Matt!   

 

One complication I should mention. In his decision the judge claims that NARA is not the successor to the ARRB. It does not have a mandate to take up the job of releasing records after the ARRB closed its doors. Despite the fact that the Act requires the records to be housed in the newly created JFKA Collection at NARA.  Despite the fact that it is to NARA's Archivist that Act gives the job of determining when all records have been released.  How would she know that unless NARA played an active role in releasing them? According to the judge, does anyone have that role if not NARA? 

 

This is incoherent. 

 

The best understanding of the issue is this: Whether Congress, in passing the JFK Records Act, had the authority to compel the release of JFK assassination records, even if such records originated within the legislative branch, over and above the Executive Branch's requirements for protecting national security.

 

Seems like that finding by the judge would make it difficult for him to order NARA to collect and release relevant legislative records. 

 

Wait.  This is getting even more contradictory by you.  I thought according to you the judge has already ruled that Biden has no say over the legislative records.  So now what?  We're in some sort of limbo whereby Biden has no say and now NARA has them, but no court can touch NARA and compel them to release?  What are you talking about?

 

My guess is that it will be difficult for the MFF to get anywhere of much importance in the case  unless the judge's finding that NARA is not the successor to the ARBB is reversed.  Either by him (seems unlikely) or on appeal. 

 

But I thought MFF has already won according to you.  But again you see NARA as the untouchable here, accountable to no one?    That's a problem, if so.  But it is not the implication, let alone the ruling, of any legal body, anywhere, in this case or any other.

 

This is past tedious.  You don't know what you are talking about, despite my attempts to, politely, in the face of your rudeness, explain matters in laymen's terms.  You have ignorantly rejected that.    You don't seem to have any understanding of legal procedure or the substantive issues here.  I have tried my best with you.

 

 

 

 

[Matt Cloud]

I will add as well here now a few facts that help illuminate the conundrum as it presently stands regarding the release of these "legislative records."

NARA it may be presumed has in its possession most let's say of the governmental JFKA records, whether executive or legislative or even judicial.  Some evidently are still out in the wild however, as in the case for example where officials' papers may have been deposited to various libraries and the like around the country.  There have recently been attempts by officials at NARA to retrieve these and bring them too under the control and possession of the Archives I understand.  

What that means is that now an executive branch agency has responsibility for maintaining the JFK records, whatever branch of the government they may have originated.  The JFK Records Act stated -- as you have pointed out -- that retention of legislative records was outside of the abilities of the President to effectuate after the 25 year deadline.  

The problem here is that subsequent to the passage of the JFK Act, additional declassification legislation was passed, including that which created the Public Interest Declassification Board.  (See Public Law (PL) 106-567 "Intelligence Authorization Act for 2001," signed on December 27, 2000, established the Public Interest Declassification Board; https://www.archives.gov/declassification/pidb/legislation.)  This in some ways has superseded the 1992 law, to which you and MFF exclusively put your faith.  

Indeed the JFK Records Act and the establishment of the PIDB are potentially in conflict.  Or, preferably, they must be understood as having to operate in concert, without conflict.  It is this Board, established by Congress, which makes the recommendations to the President as to whether continued retention of any documents -- no matter they be legislative or executive in origin for example -- relating to this and other subjects is required as a matter of national security. 

What I'm getting at is that the JFK Records Act is not the only controlling piece of legislation here.  Moynihan's PIDB effectively changed the process, back in 2000.

This is why I brought that letter by the PIDB and Cohen up in the first place.  

 

Congressional Record: October 27, 1999 (Senate)
Page S13258-S13287

 

 
          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS


                                 
      By Mr. MOYNIHAN:
  S. 1801. A bill to provide for the identification, collection, and 
review for declassification of records and materials that are of 
extraordinary public interest to the people of the United States, and 
for other purposes; to the Committee on Governmental Affairs.

[[Page S13262]]

              public interest declassification act of 1999

 Mr. MOYNIHAN. Mr. President, today I rise to introduce the 
Public Information Disclosure Act, a bill that seeks to add to our 
citizens' knowledge of how and why our country made many of its key 
national security decisions since the end of World War II. This bill 
creates a mechanism for comprehensively reviewing and declassifying, 
whenever possible, records of extraordinary public interest that 
demonstrate and record this country's most significant and important 
national security policies, actions, and decisions.
  As James Madison once wrote, "A people who mean to be their own 
governors must arm themselves with the power which knowledge gives." 
Acquiring this knowledge has become increasingly difficult since World 
War II's end, when we witnessed the rise of a vast national security 
apparatus that encompasses thousands of employees and over 1.5 billion 
classified documents that are 25 years or older. Secrecy, in the end, 
is a form of regulation. And I concede that regulation of state secrets 
is often necessary to protect national security. But how much needs to 
be regulated after having aged 25 years or more?
  The warehousing and withholding of these documents and materials not 
only impoverish our country's historical record but retard our 
collective understanding of how and why the United States acted as it 
did. This means that we have less chance to learn from what has gone 
before; both mistakes and triumphs fall through the cracks of our 
collective history, making it much harder to resolve key questions 
about our past and to chart our future actions.
  On the other hand, greater openness makes it more possible for the 
government to explain itself and to defend its actions, a not so 
unimportant thing when one recalls Richard Hofstader's warning in his 
classic 1964 essay The Paranoid Style in American Politics: "The 
distinguishing thing about the paranoid style is not that its exponents 
see conspiracies here and there in history, but they regard a 'vast' or 
'gigantic' conspiracy, set in motion by demonic forces of almost 
transcendent power as the motive force in historical events." A poll 
taken in 1993 found that three-quarters of those surveyed believed that 
President Kennedy was assassinated by a conspiracy involving the CIA, 
renegade elements of our military, and organized crime. The Grassy 
Knoll continues to cut a wide path across our national consciousness. 
The classified materials withheld from the Warren Commission, several 
of our actions in Vietnam, and Watergate have only added to the 
American people's distrust of the Federal government.
  Occasionally, though, the government has drawn back its cloak of 
secrecy and made substantial contributions to our national 
understanding. In 1995, the CIA and the NSA agreed to declassify the 
Venona intercepts, our highly secretive effort that ranged over four 
decades to decode the Soviet Union's diplomatic traffic. Much of this 
traffic centered on identifying Soviet spies, one of the cardinal 
preoccupations of that hateful era we call "McCarthyism." These 
releases made at least one thing crystal clear: Their timely release 
decades ago would have dimmed the klieg lights on many who were 
innocent and shown them more brightly on those who truly were guilty. 
It would have been an important contribution during a time when the 
innocent and the guilty were ensnared in the same net.
  Today, Congress plays a pivotal role in declassification through so-
called "special searches." Generally, these involve a member of 
Congress or the White House asking the intelligence community to search 
its records on specific subjects. These have ranged from Pinochet to 
murdered American church women to President Kennedy's assassination. 
However, these good intentions often produce neither good results nor 
good history. Sadly, most of these searches have been done poorly, 
costing millions of dollars and consuming untold hours of labor. 
Several have been performed repeatedly. Special searches on murdered 
American church women, for example, have been done nine separate times. 
Yet there are still several important questions that have yet to be 
answered. The CIA alone has been asked to do 33 "special searches" 
since 1998.
  Part of the problem is that Congress lacks a centralized, rational 
way of addressing these requests. This bill establishes a nine-member 
board composed of outside experts who can filter and steer these 
searches, all the while seeking maximum efficiency and disclosure.
  The other part of the problem lies in how the intelligence community 
has conducted these searches. It is imperative that searches are 
carried out in a comprehensive manner. This is not only cheaper in the 
long run but produces a much more accurate record of our history. One 
cannot do Pinochet, for example, and not do Chile under his rule at the 
same time. To do otherwise skews history too much and creates too many 
blind spots, all leading to more questions and more searches. This does 
a disservice not only to those asking for these searches but to the 
American people who have to pay for ad hoc, poorly done 
declassification. If we do it right the first time, then we can forgo 
much inefficiency.
  Many of these special searches ask vital questions about this 
nation's role in many disturbing events. We must see, therefore, that 
they are done correctly and responsibly. This legislation, if passed, 
would improve Congress' role in declassification, making it an 
instrumental arm in the de-cloaking and re-democratization of our 
national history. Indeed, anything less would cheat our citizens, 
undermine their trust in our institutions, and erode our democratic 
values.

 

 

 

[Roger Odisio]

5 hours ago, Matt Cloud said:

 

I'm going to skip over your arrogant, teacher to ignorant student stance, and  the obnoxiously personal remarks you pile on top, like those in your last paragraph. They only reflect badly you.  They expose your lack character.

 

Instead I want to focus on your summary. It shows your lack of understanding of the history, and very purpose of, the JFK Act:

 

The best understanding of the issue is this: Whether Congress, in passing the JFK Records Act, had the authority to compel the release of JFK assassination records, even if such records originated within the legislative branch, over and above the Executive Branch's requirements for protecting national security.

 

Whether Congress has the authority to compels record release "over and above" the President's requirement to protect National security?  That's your question!?  Of course it does. The whole purpose of the JFK Act, approved unanimously by Congress (by that time everyone understood this), was to end the previous almost 30 years of hiding the facts of the case that feckless claims of national security allowed.  To create, as much as possible, a *presumption* for record release so the public could decide for themselves what happened that day (as explained in the Final Report of the ARRB). To limit a president's ability to override that presumption by establishing stringent standards he must meet to prevent release (which Trump and Biden have been ignoring).

 

It was clear by then that the mandates in the Act were necessary. In short, your attempt to reimpose national security prerogatives of the president runs exactly counter to the purpose of the Act. It would take us back to time before Congress passed the Act.  Somewhat similar to the way the CIA's "Transparency Plan" does  that Biden accepted.

 

The release mandate applies to all branches of the federal government, but also to much more than governmental records.  The politicians in Congress recognized they lacked the expertise to define precisely what a JFK record is. So they delegated that job to the ARRB they were creating.  After a couple of years' deliberation the Board produced the broadest definition possible,  A JFKA record is any information relevant to understanding the murder, regardless of who possesses it or what form it takes.

 

Taken in the context of the full scope of records at issue, your attempt reimpose the preeminence of a presidents national security concerns loses most if not all of its meaning (besides being wrong). Surely the President does not have the authority to deny the release of the Darnell and Wiegman films for public viewing.

[Matt Cloud]

55 minutes ago, Roger Odisio said:

I'm going to skip over your arrogant, teacher to ignorant student stance, and  the obnoxiously personal remarks you pile on top, like those in your last paragraph. They only reflect badly you.  They expose your lack character.

 

Instead I want to focus on your summary. It shows your lack of understanding of the history, and very purpose of, the JFK Act:

 

The best understanding of the issue is this: Whether Congress, in passing the JFK Records Act, had the authority to compel the release of JFK assassination records, even if such records originated within the legislative branch, over and above the Executive Branch's requirements for protecting national security.

 

Whether Congress has the authority to compels record release "over and above" the President's requirement to protect National security?  That's your question!?  Of course it does. The whole purpose of the JFK Act, approved unanimously by Congress (by that time everyone understood this), was to end the previous almost 30 years of hiding the facts of the case that feckless claims of national security allowed.  To create, as much as possible, a *presumption* for record release so the public could decide for themselves what happened that day (as explained in the Final Report of the ARRB). To limit a president's ability to override that presumption by establishing stringent standards he must meet to prevent release (which Trump and Biden have been ignoring).

 

It was clear by then that the mandates in the Act were necessary. In short, your attempt to reimpose national security prerogatives of the president runs exactly counter to the purpose of the Act. It would take us back to time before Congress passed the Act.  Somewhat similar to the way the CIA's "Transparency Plan" does  that Biden accepted.

 

The release mandate applies to all branches of the federal government, but also to much more than governmental records.  The politicians in Congress recognized they lacked the expertise to define precisely what a JFK record is. So they delegated that job to the ARRB they were creating.  After a couple of years' deliberation the Board produced the broadest definition possible,  A JFKA record is any information relevant to understanding the murder, regardless of who possesses it or what form it takes.

 

Taken in the context of the full scope of records at issue, your attempt reimpose the preeminence of a presidents national security concerns loses most if not all of its meaning (besides being wrong). Surely the President does not have the authority to deny the release of the Darnell and Wiegman films for public viewing.

Of course it does?  But it's never been challenged constitutionally before.  How do we -- or uniquely, you -- know?  Congress passes laws all the time that are invalid.  So what if that's the purpose?  Happens all the time that Congress exceeds its authority.  It's a fundamental question, whether they have in this case now, especially in light of the changed facts and circumstances (the possession of the documents being in the hands of the executive) and one not answered by saying of "course it does."  

The DOJ, by the way, does not agree with you.  That's why they have reserved the right to contest the Motion to Dismiss ruling by Seeborg who was required under the Federal Rules of Civil Procedure to read MFF's complaint in the light most favorable to them.  That's the significance of the procedural posture.  That's all he did.  Accepting as true, their claim, which he must -- by law -- he then must ask whether that claim has merit.  He found it does.  But the case could still resolve in favor of DOJ on that issue.  At which point, your "established fact" is not so established anymore.  It's not a settled a question.  Nor is it a settled question whether a court can enforce an act of Congress to compel disclosure of materials, now in possession of the executive branch, which may very well contain classified information.  The Constitution, as I read it, says it cannot.  

In any case, here is the language from footnote 3 of DOJ's Motion to Dismiss, reserving their right to challenge the granting in part of MFF's claim:

"Defendants are not presently asking the Court to reconsider its conclusion that, accepting Plaintiffs’ allegations as true, Count Two states a claim as to NARA’s alleged failure to maintain accurate reference aids and to release the legislative records. Defendants dispute that Plaintiffs are entitled to any relief in connection with this claim, however, and reserve the right to seek judgment in their favor at the appropriate time."

https://www.maryferrell.org/wiki/files/jfkrecordslawsuit/mffvbiden_2023-10-26_dojMotionToDismiss.pdf

If it's so settled, as you say, DOJ would seem to be threatening to shake an empty tree.  

What is at issue here -- and you were getting there when you were talking about the question of succession from ARRB to NARA -- is who can tell NARA what to do.  You realized in your last comment I think that we were approaching a scenario where no one can tell NARA what to do.  As I said before -- that's problematic.  Again, the sensitivities on this question, which are shared across this case and the Trump classified docs case, are deeply related, which probably explains why DOJ doesn't want to commit to a position in this case that may affect them in ways they may not want to commit to in the other case.  Very tricky position they are straddling.  

Nothing on this can be said to be settled or "established fact" under present circumstances.

As to your comments about reflections on my character, save them to yourself.  You've wasted your own time digging yourself into an unrecoverable hole all the while snickering dismissively at my comments and the information I have brought here.  So save it.  The record of our exchanges here reflects the accuracy of my view.

P.S. I've done more to achieve declassification on this material and more than you are allowed to know to know right now -- it being classified. 

P.P.S. I am also not "attempt[ing] to reimpose national security prerogatives of the president."  They already exist.  Always have.  I'm just telling you what the law is.  You want to play advocate.  That's fine, but different.  I am flattered however that you would give me credit for "reimposing national security prerogatives."  Somebody has to do it.  I'll give my old boss Moynihan the last word: "Secrecy is for losers."

 

 

Edited June 10 by Matt Cloud

[Andrew Iler]

17 hours ago, Matt Cloud said:

The problem here is that subsequent to the passage of the JFK Act, additional declassification legislation was passed, including that which created the Public Interest Declassification Board.  (See Public Law (PL) 106-567 "Intelligence Authorization Act for 2001," signed on December 27, 2000, established the Public Interest Declassification Board; https://www.archives.gov/declassification/pidb/legislation.)  This in some ways has superseded the 1992 law, to which you and MFF exclusively put your faith.  

Indeed the JFK Records Act and the establishment of the PIDB are potentially in conflict.  Or, preferably, they must be understood as having to operate in concert, without conflict.  It is this Board, established by Congress, which makes the recommendations to the President as to whether continued retention of any documents -- no matter they be legislative or executive in origin for example -- relating to this and other subjects is required as a matter of national security. 

What I'm getting at is that the JFK Records Act is not the only controlling piece of legislation here.  Moynihan's PIDB effectively changed the process, back in 2000.

 

Matt, two of the many problems with your argument are that:

1. General pieces of legislation like the Intelligence Authorization Act (which does not even mention the JFK Records or the JFK Records Act) don’t supersede specialized, narrowly drafted purpose designed legislation like the JFK Records Act without explicitly stating so. 
 

2. Your argument also runs directly up against section 11(a) of the JFK Records Act. 
 

SEC. 11. RULES OF CONSTRUCTION.
(a) PRECEDENCE OVER OTHER LAW.—When this Act requires transmission of a record to the Archivist or public disclosure, it shall take precedence over any other law (except section 6103 of the Internal Revenue Code), judicial decision construing such law, or common law doctrine that would otherwise prohibit such transmission or disclosure, with the exception of deeds governing access to or transfer or release of gifts and donations of records to the United States Government. 

Edited June 10 by Andrew Iler

[Roger Odisio]

12 hours ago, Matt Cloud said:

Of course it does?  But it's never been challenged constitutionally before.  How do we -- or uniquely, you -- know?  Congress passes laws all the time that are invalid.  So what if that's the purpose?  Happens all the time that Congress exceeds its authority.  It's a fundamental question, whether they have in this case now, especially in light of the changed facts and circumstances (the possession of the documents being in the hands of the executive) and one not answered by saying of "course it does."  

The DOJ, by the way, does not agree with you.  That's why they have reserved the right to contest the Motion to Dismiss ruling by Seeborg who was required under the Federal Rules of Civil Procedure to read MFF's complaint in the light most favorable to them.  That's the significance of the procedural posture.  That's all he did.  Accepting as true, their claim, which he must -- by law -- he then must ask whether that claim has merit.  He found it does.  But the case could still resolve in favor of DOJ on that issue.  At which point, your "established fact" is not so established anymore.  It's not a settled a question.  Nor is it a settled question whether a court can enforce an act of Congress to compel disclosure of materials, now in possession of the executive branch, which may very well contain classified information.  The Constitution, as I read it, says it cannot.  

In any case, here is the language from footnote 3 of DOJ's Motion to Dismiss, reserving their right to challenge the granting in part of MFF's claim:

"Defendants are not presently asking the Court to reconsider its conclusion that, accepting Plaintiffs’ allegations as true, Count Two states a claim as to NARA’s alleged failure to maintain accurate reference aids and to release the legislative records. Defendants dispute that Plaintiffs are entitled to any relief in connection with this claim, however, and reserve the right to seek judgment in their favor at the appropriate time."

https://www.maryferrell.org/wiki/files/jfkrecordslawsuit/mffvbiden_2023-10-26_dojMotionToDismiss.pdf

If it's so settled, as you say, DOJ would seem to be threatening to shake an empty tree.  

What is at issue here -- and you were getting there when you were talking about the question of succession from ARRB to NARA -- is who can tell NARA what to do.  You realized in your last comment I think that we were approaching a scenario where no one can tell NARA what to do.  As I said before -- that's problematic.  Again, the sensitivities on this question, which are shared across this case and the Trump classified docs case, are deeply related, which probably explains why DOJ doesn't want to commit to a position in this case that may affect them in ways they may not want to commit to in the other case.  Very tricky position they are straddling.  

Nothing on this can be said to be settled or "established fact" under present circumstances.

As to your comments about reflections on my character, save them to yourself.  You've wasted your own time digging yourself into an unrecoverable hole all the while snickering dismissively at my comments and the information I have brought here.  So save it.  The record of our exchanges here reflects the accuracy of my view.

P.S. I've done more to achieve declassification on this material and more than you are allowed to know to know right now -- it being classified. 

P.P.S. I am also not "attempt[ing] to reimpose national security prerogatives of the president."  They already exist.  Always have.  I'm just telling you what the law is.  You want to play advocate.  That's fine, but different.  I am flattered however that you would give me credit for "reimposing national security prerogatives."  Somebody has to do it.  I'll give my old boss Moynihan the last word: "Secrecy is for losers."

 

 

I'm sure you're familiar with Section 11 (a) of the JFK Act, which reads: "PRECEDENCE OVER OTHER LAW.--When this Act requires requires transmission of a record to the Archivist or public disclosure, it shall take precedence over any other law (except section 6103 of the Internal Revenue Code). judicial decision construing such law, or common law doctrine that would otherwise prohibit such transmission or disclosure". Seems clear and complete, doesn't it?

The law you're talking about became a law 9 years later.  If there had been a conflict between the two laws, if the later law had "in some ways has superseded the 1992 law" as you claim, if it intentionally "changed the process", there would have been a discussion of this in the legislative history to try to reconcile the differences.  Or, at the very least, an acknowledge of a conflict. Can you point me to that discussion?

I think the conflict is mostly in your head.  The later law provides for its BOARD to recommend to the President that he disclose a record, as many other entities do, but it contains no mandate that he do so, or specific reasons he must offer if he declines a release.  Unlike the JFKA Act. Biden ignored their recommendation, which, as I understand it, simply was to release as much as possible, with no explanation necessary.

Section 2 of the JFK Act carefully sets out its purpose.  Starting with all records about the murder "should carry a presumption of immediate disclosure", followed by four paragraphs explaining why the legislation is necessary to achieve that. It's been on the books now for 32 years 

But now you trot out the possibility JFK Act itself may at some point be declared unconstitutional because Congress has mandated things without the power to do so. Because, well, anything is possible. 

You've asked questions like who can tell NARA what to do. Let's see. Didn't the Act require NARA to set up the JFKA Records Collection and house the records on site?  Didn't the Act requite the Archivist to certify to the President and Congress when all JFK records had been released.  Congress well understood it couldn't leave the latter decision to politicians in either branch of government.  Were either of these actions illegitimate or unconstitutional?

If you want to pursue this line of argument, you're going to have to come up with something more. I'm not going to hold my breath.

Btw, you have several times surmised that NARA has in its possession all or most of the records it should have. Not true. A central argument by MFF in its suit is that NARA has done virtually nothing in the 26 years since the ARRB closed to, not only finish the collections the ARRB had left undone, but more importantly, in my view, it has made little or no attempt at add records that have since become known.

 

 

[Matt Cloud]

31 minutes ago, Roger Odisio said:

I'm sure you're familiar with Section 11 (a) of the JFK Act, which reads: "PRECEDENCE OVER OTHER LAW.--When this Act requires requires transmission of a record to the Archivist or public disclosure, it shall take precedence over any other law (except section 6103 of the Internal Revenue Code). judicial decision construing such law, or common law doctrine that would otherwise prohibit such transmission or disclosure". Seems clear and complete, doesn't it?

The law you're talking about became a law 9 years later.  If there had been a conflict between the two laws, if the later law had "in some ways has superseded the 1992 law" as you claim, if it intentionally "changed the process", there would have been a discussion of this in the legislative history to try to reconcile the differences.  Or, at the very least, an acknowledge of a conflict. Can you point me to that discussion?

I think the conflict is mostly in your head.  The later law provides for its BOARD to recommend to the President that he disclose a record, as many other entities do, but it contains no mandate that he do so, or specific reasons he must offer if he declines a release.  Unlike the JFKA Act. Biden ignored their recommendation, which, as I understand it, simply was to release as much as possible, with no explanation necessary.

Section 2 of the JFK Act carefully sets out its purpose.  Starting with all records about the murder "should carry a presumption of immediate disclosure", followed by four paragraphs explaining why the legislation is necessary to achieve that. It's been on the books now for 32 years 

But now you trot out the possibility JFK Act itself may at some point be declared unconstitutional because Congress has mandated things without the power to do so. Because, well, anything is possible. 

You've asked questions like who can tell NARA what to do. Let's see. Didn't the Act require NARA to set up the JFKA Records Collection and house the records on site?  Didn't the Act requite the Archivist to certify to the President and Congress when all JFK records had been released.  Congress well understood it couldn't leave the latter decision to politicians in either branch of government.  Were either of these actions illegitimate or unconstitutional?

If you want to pursue this line of argument, you're going to have to come up with something more. I'm not going to hold my breath.

Btw, you have several times surmised that NARA has in its possession all or most of the records it should have. Not true. A central argument by MFF in its suit is that NARA has done virtually nothing in the 26 years since the ARRB closed to, not only finish the collections the ARRB had left undone, but more importantly, in my view, it has made little or no attempt at add records that have since become known.

 

 

There are some things that Congress can certainly tell NARA what to do.  After all, Congress holds the purse strings over NARA.  But on the question of whether Congress can compel the release of documents held by the executive branch, which can be presumably be understood as containing classified material as defined under executive order, that is another matter.  Plain and simple.  There is lurking here below the surface this constitutional issue.  There are ways for the case to be resolved however which would not require reaching the constitutional question(s), and that approach is the favored one in judicial interpretation. 

I'll elaborate just briefly on this remark because it is revelatory of the conundrum that DOJ is in between the two document cases.  I wrote:

"What is at issue here ... is who can tell NARA what to do."

In this case, MFF is arguing that Congress, via judicial enforcement, can tell NARA what do do with the records in its possession.  Biden and the DOJ have essentially sat that argument out, reserving however the right to contest that understanding when and if necessary.  Simultaneously, in the classified documents case in Florida, Trump is arguing that the Executive -- and only the Executive -- can tell NARA what to do.  Biden and the DOJ are essentially trying to avoid engagement on that question too, avoiding the obvious applicability of the Presidential Records Act to the dispute and instead electing to bring charge under the Espionage Act.  These two case fit together like two reciprocal, interlocking blocks, with NARA at the middle.  Ironically, the more MFF argues in court that Congress can compel the release of the materials at issue, over executive branch objection, the more MFF will force DOJ into actually entering the argument, forcing DOJ to say no, only the president can tell NARA what to do with respect to release.  In other words, the more MFF forces the issue, the more the DOJ will have to align with Trump's argument. That's why they are sitting out both arguments in each case.

 

I'll return in a little bit to discuss further the intersection between the JFK Records Act and the establishment later of the PIDB.  

Edited June 10 by Matt Cloud

[Matt Cloud]

16 minutes ago, Andrew Iler said:

Matt, two of the many problems with your argument are that:

1. General pieces of legislation like the Intelligence Authorization Act (which does not even mention the JFK Records or the JFK Records Act) don’t supersede specialized, narrowly drafted purpose designed legislation like the JFK Records Act without explicitly stating so. 
 

2. Your argument also runs directly up against section 11(a) of the JFK Records Act. 
 

SEC. 11. RULES OF CONSTRUCTION.
(a) PRECEDENCE OVER OTHER LAW.—When this Act requires transmission of a record to the Archivist or public disclosure, it shall take precedence over any other law (except section 6103 of the Internal Revenue Code), judicial decision construing such law, or common law doctrine that would otherwise prohibit such transmission or disclosure, with the exception of deeds governing access to or transfer or release of gifts and donations of records to the United States Government. 

I'll be back as I said to discuss this further in more detail, the interesting interplay between JFK Records Act and PIDB.  Meanwhile a couple of things:

Can I get statement of a principle of law somewhere that confirms your claim regarding distinction between "general pieces of legislation" and "specialized, narrowly drafted purpose designed legislation?"  Thanks.

I will also remind you that, as I wrote in my comment, there is a "potential conflict," or the possible appearance of conflict, but "preferably they must be understood as having to operate in concert, without conflict."

And also Section 11(a) only says that no law, except the IRS code, shall interfere with the JFK Records Act requirement handing over relevant documents to the Archives.  It does not say as you seem to be implying that that in any other respect the JFK Records Act predominates in the face of other legislation.  Not at all.  Not even close.  The declassification legislation does not interfere with JFK Records Act requirement as to transmitting documents into NARA possession.  Indeed, that legislation envisions the very same thing as the JFK Records Act.  It then creates a new, specialized board to manage those documents, the executive secretary I would add is -- or was, until his resignation when all of this blew up -- the very person who wrote the law in the first place.

[Matt Cloud]

Now to this, by @Roger Odisio:

"The law you're talking about [The Intelligence Auth Act of 2000 as amended creating the PIDB] became a law 9 years later.  If there had been a conflict between the two laws, if the later law had "in some ways has superseded the 1992 law" as you claim, if it intentionally "changed the process", there would have been a discussion of this in the legislative history to try to reconcile the differences.  Or, at the very least, an acknowledge of a conflict. Can you point me to that discussion?"

You assert that the JFK Records Act and the legislation creating the Public Interest Declassification Board are entirely parallel pieces of legislation with no conflict or competition or even overlapping effect.  You see no indication in the legislative history of the latter legislation for another view, contrary to yours.  I disagree. 

Let me provide a quick, back-of-the-napkin sketch.

1. The sponsor of the bill (Pat Moynihan (D-NY)) creating the PIDB in his Senate floor remarks introducing the legislation expressly referenced records relating to the Kennedy assassination, which I provided to you above. See Congressional Record: October 27, 1999 (Senate) Page S13258-S13287.  That's leg history. 

2. I have already provided to you the letter from E. Cohen of the PIDB in which he explains the Board's role with respect to the issue of release of records under the JFK Records Act.  This is not leg history, but factual and practical acknowledgment of the effect of the latter law on the former law.  

3. Further along the lines of point 2, you can see for yourself that the PIDB is in fact material to the issue of release by going to their website and reading the discussion: https://transforming-classification.blogs.archives.gov/2021/06/02/pidb-responds-to-questions-about-the-jfk-assassination-records/.  It's titled "PIDB Responds to Questions About the JFK Assassination Records."

4.  As a member of Senator Moynihan's staff from 1996-2001, that is to say during the time in which the PIDB was introduced and ultimately passed, hidden away you might say in the Intel Auth act for that year, I can offer numerous anecdotal support for the understanding that the PIDB creation directly implicated the effect of the JFK Records Act -- even if unstated for the most part publicly.  For example:

a. I was personally involved in participating in communications between Moynihan's office and persons concerned about the effect of his legislation on historical research of classified material generally and the Kennedy assassination specifically.  Such persons included, but are in no way limited to, members of the Kennedy administration itself, such as Arthur Schlesinger Jr. and Roger Hilsman.  Stu Symington too. These persons were concerned about the last-minute changes in the Moynihan legislation in 2000 that essentially removed mandatory declassification. 

b. Moynihan's personal correspondence from this period moreover confirms my interpretation.  I have in my possession letters, which NARA also has now, between Senator Moynihan and then CIA Director John M. Deutch in the period from 1996-1997, when Deutch was then under considerable public fire for allegations that he was stymieing JFK Records act compliance.  In this correspondence, it is evident through implied analysis, that what Moynihan was communicating to Deutch was information that Moynihan felt should still be protected, against the purposes of the JFK Records Act.  Perhaps most notably, this correspondence includes discussion of the strategic significance of the U-2 plane with respect to US-Soviet relations, as well as other topics like CIA involvement with crack cocaine.  

c.  Letters between Moynihan and CIA Director Tenet, after 1997, also confirm this understanding, as do materials shared between Moynihan and Porter Goss, then chair of the House intel comm, which had corresponding jurisdiction on the House side.  

I could provide more detail and I recognize, to be sure, that publicly-available material on the potential intersection between the JFK Records Act and the PIDB is somewhat thin with respect to what you want to see in the so-called "legislative history."  The above I contend is legislative history, even if not provided in the Senate-House Conferees Report.  More, I contend that it was politically expedient to NOT advertise ways in which this PIDB legislation, which was highly controversial, and took many congressional sessions to finally pass, impacted the JFK Record Act.  But nonetheless it did, it has, and it is.  Still, today.  The PIDB you might say was a covert end-run around the JFK Records Act, by getting JFK records into control of the executive and then creating a congressional and presidential appointed board to oversee the maintenance and release of these and other documents. 

I think that is by now self-evident, if one has been pointed in the right direction as to where to look.

As to your repeated comments that NARA does not have all documents relating to the JFKA I fully agree with you.  You needn't keep bringing it up unless and until you find some way to explain why it is relevant to this discussion.  Or why it is an issue.  I agree fully.  Relevant materials could be anywhere in the world.  I have some in my attic, right now, that NARA does not have.  

[Andrew Iler]

Part of the problem (which Judge Seeborg’s Orders have appeared to identify) is that the plaintiffs have not sufficiently parsed out and defined the precise discreet ministerial duties in the JFK Records Act and the mandated officials’ specific non-compliance with said ministerial duties, so to give Judge Seeborg any legal traction with which to work. 
 

In this respect, the pleadings appear to not have sufficiently itemized or enumerated the discreet explicit ministerial duties in the Act that apply to the President and the National Archivist, and the complaint also appears to have inadequately differentiated these very limited ministerial duties from the President’s and National Activist’s (who was not named in the complaint) broader discretionary duties. 

The sometimes subtle difference between discretionary duties and ministerial duties, in terms of executive branch and presidential administrative actions is the very narrow slice of ground on which this claim might have been successfully fought. However, one must sufficiently plead causes of action before a court can adjudicate them. It seems apparent from Judge Seeborg’s July 2023 Order, that he found no ministerial duties were sufficiently pleaded. “Since none of the actions challenged are ministerial, there is no jurisdiction to grant injunctive or mandamus relief against the President here. Nor do Plaintiffs state a claim for declaratory relief. Because these are failures of law and any amendment would be futile, Counts 1 and 2 are dismissed without leave to amend.”

Judge Seeborg has actually been quite permissive in his Orders, in allowing the plaintiffs’ multiple amendments to attempt to remedy the deficiencies in the original complaint. The fact that the complaint has moved forward at all shows that the  judge himself has identified that the JFK Act raises some questions about how the executive branch has handled the post October 26, 2017 postponements, and that at least something needs to be sorted out. What particularly stood out for me was Judge Seeborg’s repeated reference to section 9(d)(1), given the fact that this particular provision of the JFK Records Act was not even mentioned in the original complaint or even in the 1st Amended Complaint. 

[Matt Cloud]

4 minutes ago, Andrew Iler said:

Part of the problem (which Judge Seeborg’s Orders have appeared to identify) is that the plaintiffs have not sufficiently parsed out and defined the precise discreet ministerial duties in the JFK Records Act and the mandated officials’ specific non-compliance with said ministerial duties, so to give Judge Seeborg any legal traction with which to work. 
 

In this respect, the pleadings appear to not have sufficiently itemized or enumerated the discreet explicit ministerial duties in the Act that apply to the President and the National Archivist, and the complaint also appears to have inadequately differentiated these very limited ministerial duties from the President’s and National Activist’s (who was not named in the complaint) broader discretionary duties. 

The sometimes subtle difference between discretionary duties and ministerial duties, in terms of executive branch and presidential administrative actions is the very narrow slice of ground on which this claim might have been successfully fought. However, one must sufficiently plead causes of action before a court can adjudicate them. It seems apparent from Judge Seeborg’s July 2023 Order, that he found no ministerial duties were sufficiently pleaded. “Since none of the actions challenged are ministerial, there is no jurisdiction to grant injunctive or mandamus relief against the President here. Nor do Plaintiffs state a claim for declaratory relief. Because these are failures of law and any amendment would be futile, Counts 1 and 2 are dismissed without leave to amend.”

Judge Seeborg has actually been quite permissive in his Orders, in allowing the plaintiffs’ multiple amendments to attempt to remedy the deficiencies in the original complaint. The fact that the complaint has moved forward at all shows that the  judge himself has identified that the JFK Act raises some questions about how the executive branch has handled the post October 26, 2017 postponements, and that at least something needs to be sorted out. What particularly stood out for me was Judge Seeborg’s repeated reference to section 9(d)(1), given the fact that this particular provision of the JFK Records Act was not even mentioned in the original complaint or even in the 1st Amended Complaint. 

Good discussion there.  

[Andrew Iler]

32 minutes ago, Matt Cloud said:

 by @Roger Odisio

Let me provide a quick, back-of-the-napkin sketch.

Matt, are you suggesting that the rules of statutory interpretation support your argument that the legislative history of the Intelligence Authorization Act supersedes the actual clear unambiguous language of section 11(a) of the JFK Records Act?
 

Justice Scalia is rolling in his grave!!

[Matt Cloud]

12 minutes ago, Andrew Iler said:

Matt, are you suggesting that the rules of statutory interpretation support your argument that the legislative history of the Intelligence Authorization Act supersedes the actual clear unambiguous language of section 11(a) of the JFK Records Act?
 

Justice Scalia is rolling in his grave!!

I make no argument that relies on legislative history.  I accord with Scalia on that.  My discussion of the legislative history, a subject in which @Roger Odisio puts his faith, almost determinatively, was in response to his question.  My point, my argument if you like, that the PIDB is in actuality the controlling and relevant body here, above the ghost of the ARRB, but just below the decision of the Chief Executive, rests on the practical implication and effect of that body and that legislation on this entire subject.  You can take the leg history, whether publicly stated or privately explained as I have here, or not.  It doesn't matter.  Failure to address the PIDB's role is fatal to obtaining the results that MFF would like to achieve.  

Edited June 10 by Matt Cloud

[Andrew Iler]

2 hours ago, Matt Cloud said:

Can I get statement of a principle of law somewhere that confirms your claim regarding distinction between "general pieces of legislation" and "specialized, narrowly drafted purpose designed legislation?"  Thanks.

Going off memory, I believe that it is a conflict of laws principle that the specific controls the general. I’ll try to find some authority.