WASHINGTON — Former President Donald J. Trump’s claim that he had declassified all documents seized by the FBI in a search of his Florida home last week, including those marked top secret, has heightened the ‘interest in the scope of the president’s power to declassify. information
On Friday, Mr. Trump’s office said that when he was president, he had a “standing order” that materials “taken from the Oval Office and brought to the residence were considered declassified at the time he removed them,” according to a statement read on Fox News by a right-wing writer that Mr. Trump has designated as one of his representatives the National Archives.
Apart from whether there is evidence that such an order actually existed, the idea has been met with disdain by national security legal experts. Glenn S. Gerstell, the National Security Agency’s chief counsel from 2015 to 2020, voiced the idea that anything Mr. Trump wore upstairs every evening was automatically declassified, without logging what it was and notifying the agencies that used that information. “ridiculous”.
The claim is also irrelevant to Mr. Trump on the question of the documents, because none of the three criminal laws cited in a search warrant as the basis of the investigation depend on whether the documents contain classified information.
Still, the novel’s claim is surprising. Here’s a closer look at what a president can and can’t do when it comes to removing protections for government secrets.
What is the classification system?
It is the administrative process by which the federal government controls how executive branch officials handle information whose possible public exposure is deemed likely to harm national security.
Officials with authority to classify or declassify matters may consider information to fall into one of three categories: confidential, secret, or top secret. Access to particularly sensitive information can be further restricted with an SCI designation, for sensitive compartmentalized information.
If the information is classified, access to it is restricted. Any documents containing such information are supposed to be redacted, and only officials with the appropriate security clearances and a “need to know” can see them or be informed of their contents. There are also rules that limit how they can be stored, physically transported or transmitted electronically.
The legal basis for the classification system comes from the president’s constitutional authority as commander-in-chief. It has been established and developed by presidents through a series of executive orders dating back to the era that includes World War II and the early years of the Cold War. The current directive, Executive Order 13526, was issued by President Barack Obama in 2009.
Is the classification system applied by criminal law?
For the most part no.
For the most part, the classification system deals with bureaucratic controls. The main penalty for disobedience is administrative: officials can be reprimanded, lose security clearances and be fired.
More coverage of the FBI Search of Trump’s Home
As such, the classification system exists alongside separate criminal penalties that Congress has imposed to protect security secrets.
For example, the Espionage Act of 1917, one of the laws cited in the search warrant, protects secrets it defines as defense-related information that could harm the United States or help a foreign adversary. It does not refer to classification status, and prosecutors in an Espionage Act case do not have to prove that anything was considered classified.
A rare exception, where Congress has tied a law to the classification system, is section 1924 of Title 18 of the US Code, which makes the unauthorized retention or disposal of classified material a crime. But this was not one of the laws listed in the search warrant as the focus of the investigation.
Who has the power to classify and declassify information?
In the normal course of business, certain officials who have been designated as “original classification authorities” in federal departments and agencies may do so. It is considered that they exercise the powers of the president on these matters, which have been delegated to them.
Are there formal procedures for declassifying information?
Yes. The 2009 executive order directs the head of the department or agency that originally deemed the information to be classified to oversee declassification reviews and sets some standards for them.
The executive branch has regulations that set out the process that must be followed, such as the requirement to ensure that other agencies and departments interested in secrecy are consulted. There are also procedures for removing classification marks from documents.
Can presidents declassify matters directly?
Yes, because ultimately it is their constitutional authority.
Presidents who want something declassified typically direct subordinates who oversee the department or agency with primary responsibility for the information to review the matter with the goal of making it more public. But rarely do presidents declassify something outright.
For example, in 2004, President George W. Bush himself declassified a portion of his daily presidential intelligence briefing from August 2001—one month before the 9/11 terrorist attacks — in which it had been warned: “Bin Laden determined to attack the US. “
Do presidents have to obey standard procedures?
There is no Supreme Court precedent that definitively answers this question.
Although it is true that Mr. Trump had declared the documents declassified while in office, it is clear that he did not follow the usual procedures.
In the unlikely event that the Justice Department charges him under the law that makes the unauthorized retention or removal of classified material a crime — while not including it as a focus of the investigation in the search warrant—, a new question would arise if Mr. Trump then had to repeat the claim as a defense.
Proponents of a strong view of presidential power have argued in other contexts that presidents are not personally bound by the rules and procedures governing the conduct of their subordinates in the executive branch, and that presidents can even ignore executive orders without terminating them before. Others disagree with this view of the executive branch.
The statement from the office of Mr. Trump, which was read aloud by right-wing writer John Solomon, included what appeared to be a nod to them: “The idea that some paper bureaucrat, with classification authority delegated by the president, needs to approve the declassification it’s absurd”.
What about nuclear secrets?
They are different, although for the purposes of criminal law there is little substantive difference.
Congress has passed a law, the Atomic Energy Act, that imposes its own legal restrictions on the mishandling of information about how to build a nuclear bomb or enrich nuclear material. This information is called “restricted data”. Legally, it is not the same as being “classified” under the executive order, although in everyday language people often refer to it as classified.
The law established a process for making decisions about downgrading these protections. For those involving military weapons, Congress mandated that the decision be made jointly by senior officials from the Departments of Energy and Defense; if the two departments disagree about whether to do it or not, the law says the president makes the final decision. So, at a minimum, these officials must be involved in any decision to downgrade nuclear weapons information to so-called previously restricted data.
The Atomic Energy Act made it a crime for officials to disclose restricted data without authorization. But whether or not information about dangerous nuclear weapons is considered restricted data, the Espionage Act separately makes its unauthorized retention or disclosure a crime.
Can a president secretly declassify information without leaving a written record or telling anyone?
That question, according to experts in government secrecy law, is borderline incoherent.
If there is no directive to recall a decision to declassify information and pass it on to the rest of the government, the action would be essentially inconsequential, as departments and agencies would continue to consider that information classified and thus continue to restricting access to the documents they contain. this
“Hypothetical questions like ‘What if a president thinks something is declassified? Does that change his status?’ are so speculative that their practical meaning is negligible,” said Steven Aftergood, a secrecy specialist at the Federation of American Scientists.
He added: “It’s a logical mess. The system is not meant to be deployed in such an arbitrary way.”