WASHINGTON — Former President Donald J. Trump’s claim that he had declassified all documents seized by the FBI during the search of his Florida home last week — including those marked as top secret — has heightened public awareness. interest in the extent of the president’s power to declassify information.
On Friday, Mr Trump’s office claimed that when he was president he had a ‘standing order’ that documents ‘removed from the Oval Office and taken to the residence were deemed declassified the moment he removed them’, according to a statement read on Fox News by a right-wing writer whom Mr. Trump has designated as one of his representatives at the National Archives.
Regardless of whether there is evidence that such an order actually exists, the idea has been met with disdain by national security legal scholars. Glenn S. Gerstell, the National Security Agency’s top lawyer from 2015 to 2020, floated the idea that anything Mr. Trump took upstairs each night was automatically declassified — without logging what it was. and without informing the agencies that were using the information – “absurd.”
The allegation is also irrelevant to Mr. Trump’s potential problems with the documents issue, as none of the three criminal statutes cited in a search warrant as the basis of the investigation depend on whether the documents contain classified information.
Yet the new claim is striking. Here’s a look at what a president can and can’t do when it comes to removing protection from government secrets.
What is the ranking system?
It is the administrative process by which the federal government controls how executive branch officials handle information whose potential public exposure is deemed likely to harm national security.
Officials empowered to classify or declassify cases 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 compartmentalized sensitive information.
If the information is classified, access to it is restricted. All documents containing such information are supposed to be marked, and only officials with the appropriate security clearances — and a “need to know” — are allowed to see them or be briefed on their contents. There are also rules limiting how they can be stored, physically transported or transmitted electronically.
The legal basis for the classification system derives from the President’s constitutional authority as Commander-in-Chief. Presidents established and developed it through a series of executive orders dating back to the era encompassing World War II and the onset of the Cold War. The current directive, Executive Order 13526, was issued by President Barack Obama in 2009.
Is the classification system enforced by criminal law?
Largely no.
Essentially, the classification system is about bureaucratic controls. The main penalty for disobedience is administrative: officials can be reprimanded, lose their 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 aid a foreign adversary. . It makes no reference to classification status, and prosecutors in an espionage law case don’t need to prove that anything was deemed 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 unauthorized retention or removal of classified material a crime. But it was not one of the laws that was listed in the search warrant as central to 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. They are considered to exercise the power of the president on these matters, which has 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 classified information to oversee declassification reviews, and it sets certain standards for them.
The executive branch has regulations defining the process to be followed, such as the obligation to ensure that other agencies and departments with an interest in the secrecy are consulted. There are also procedures for removing classification marks from documents.
Can presidents directly declassify cases?
Yes, because it is ultimately their constitutional authority.
Normally, presidents who want something declassify direct reports overseeing the department or agency with primary responsibility for the information to look into the matter with a view to making it more public. But on rare occasions, presidents declassify something directly.
For example, in 2004, President George W. Bush himself declassified part of his daily presidential intelligence briefing from August 2001 – a month before the 9/11 terrorist attacks – in which he had warned: “ Bin Laden determined to strike in the United States. ”
Do chairs have to follow standard procedures?
No Supreme Court precedent definitively answers this question.
While it’s true that Mr. Trump delivered the declassified documents while in office, he clearly did not follow the usual procedures.
In the unlikely event that the Justice Department charges him under the law that makes the unauthorized withholding or removal of classified documents a crime – although it is not listed as a central part of the investigation into the search warrant – a new question would arise if Mr. Trump were then to repeat the claim in 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 that govern the conduct of their subordinates in the executive – and that presidents can even ignore executive orders without overriding them first. Others disagree with this view of executive power.
The statement from Mr. Trump’s office that was read aloud by right-wing writer John Solomon included what appeared to be a gesture against them: “The idea that a paper-pressing bureaucrat, with a classification authority delegated by the president, must approve declassification is nonsense.
What about nuclear secrets?
They are distinct, although for criminal law purposes there is little substantive difference.
Congress has passed a law, the Atomic Energy Act, which imposes its own legal restrictions on mishandling information about how to build a nuclear bomb or enrich nuclear materials. This information is called “restricted data”. Legally it is not the same as being “classified” under the Executive Order, although in common parlance people often call it “classified”.
The law established a process for making decisions about the downgrading of these protections. For those involving military weapons, Congress required that the decision be made jointly by senior officials from the Departments of Energy and Defense; if the two departments disagree on whether or not to do so, the law states that 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 makes it an offense for officials to disclose confidential data without authorization. But whether or not dangerous nuclear weapons information remains considered restricted data, the Espionage Act separately makes its unauthorized retention or disclosure a crime.
Can a president secretly declassify information without leaving a paper trail or telling anyone?
This question, according to specialists in the law of government secrecy, is borderline incoherent.
If there is no directive enshrining a decision to declassify the information and release it to the rest of government, the action would have essentially no consequence, as departments and agencies would continue to consider the information classified and would therefore continue to restrict access to documents containing this.
“Hypothetical questions like, ‘What if a president thinks something is declassified? Does this change its status? are so speculative that their practical significance is negligible,” said Steven Aftergood, secrecy expert at the Federation of American Scientists.
He added: “It’s a logical mess. The system is not intended to be deployed so arbitrarily.