WASHINGTON — Former President Donald J. Trump’s claim that he released all documents seized by the FBI during the search of his Florida home last week — including those classified as top secret — has sparked interest in the scope of a president’s power to downgrade declassification. information.
On Friday, Mr. Trump’s office claimed that when he was president, he had a “standing order” that materials “removed from the Oval Office and brought to the residence were deemed to have been released the moment he received them.” deleted,” said one statement read on Fox News by a right-wing writer who has designated Mr. Trump as one of his representatives at the National Archives.
Aside from whether there is any evidence that such an order actually existed, the idea has been met with disdain by national security legal specialists. Glenn S. Gerstell, the top attorney for the National Security Agency from 2015 to 2020, expressed the idea that anything Trump took upstairs each night was automatically released — without logging what it was and the agencies using that information on the to inform – “ridiculous.”
The claim is also irrelevant to Mr Trump’s potential concerns over the documents issue, as none of the three criminal laws listed in a search warrant as the basis for the investigation depend on whether documents contain classified information.
Still, the new claim is striking. Here’s a closer look at what a president can and cannot 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 potential exposure to the public is likely to harm national security.
Officials with the power to classify or declassify matters may consider information to fall into three categories: confidential, secret, or top secret. Access to particularly sensitive information can be further restricted with a designation of SCI, for sensitive compartmentalized information.
If information is classified, access to it is restricted. Any documents containing that information must be flagged, and only officials with the appropriate security clearances — and a “need to know” — should be allowed to see them or be told about their contents. There are also rules that limit how they can be stored, physically transported or sent electronically.
The legal basis for the classification system comes 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 World War II and early Cold War era. The current directive, Executive Order 13526, was issued in 2009 by President Barack Obama.
Is the classification system enforced by criminal law?
For the most part not.
The classification system is for the most part about bureaucratic controls. The main punishment for disobedience is administrative: officials can be reprimanded, lose their security clearance and be fired.
More coverage of the FBI search into Trump’s home
As such, the classification system coexists with separate criminal penalties imposed by Congress to protect security secrets.
For example, the Espionage Act of 1917 — one of the laws mentioned in the search warrant — protects secrets it defines as defense-related information that could harm the United States or aid a foreign adversary. There is no reference to classification status, and prosecutors in an espionage law case are not required to prove that something was considered classified.
A rare exception, where Congress has tied a law to the classification system, is Section 1924 of Title 18 of the U.S. Code, which makes the unauthorized retention or disposal of classified material a crime. But that wasn’t one of the laws that the search warrant contained as the focus of the investigation.
Who has the authority to classify and declassify information?
In the normal course of business, certain officials designated as “original classification authorities” in federal departments and agencies may do so. They are expected to exercise the power of the President over such 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 considered information to be classified to oversee declassification assessments and sets a number of standards for them.
The executive branch has regulations outlining the process to be followed, such as a requirement to ensure that other agencies and departments with an interest in the secrecy are consulted. There are also procedures for removing classification marks on documents.
Can Presidents Release Cases Immediately?
Yes, because it is ultimately their constitutional authority.
Normally, presidents who want to release something direct subordinates who oversee the department or agency with primary responsibility for the information to review the matter with a view to making it more public. But in rare cases, presidents declassify something directly.
For example, in 2004 President George W. Bush himself released part of his August 2001 presidential daily intelligence briefing — a month before the September 11 terrorist attacks — warning him: “Bin Laden determined to strike in the US.”
Do presidents have to follow the usual procedures?
There is no Supreme Court precedent definitively answering this question.
Even if it is true that Mr. Trump released the documents while in office, he was clearly not following regular procedures.
In the unlikely event that the Justice Department were to charge him under the law that makes the unauthorized retention or removal of classified material a crime — despite not being listed as a focus of the search warrant’s investigation — a new question would rise as Mr. Trump would then 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 behavior of their subordinates in the executive branch — and that presidents can even ignore executive orders without first revoking them. . Others disagree with that view of executive power.
The statement from Mr. Trump’s office read aloud by right-wing writer, John Solomon, contained what appeared to be a gesture accompanying the claim: is absurd.”
What about nuclear secrets?
They are distinguishable, although for criminal purposes there is little substantial difference.
Congress passed a bill called the Atomic Energy Act, which imposes its own legal restrictions on mishandling information about building an atomic bomb or enriching nuclear materials. Such information is referred to as ‘restricted data’. Legally, it is not the same as being “classified” under the executive order, although people often refer to it as classified in everyday parlance.
The law has established a process for making decisions about lowering such protections. For those who use military weapons, Congress has mandated that the decision be made jointly by senior officials from the Energy and Defense Departments; if the two departments disagree on whether or not to do it, the law says the president makes the final decision. So at the very least, those officials should be involved in any decision to downgrade nuclear weapons information to so-called previously limited data.
The Atomic Energy Act made it a crime for government officials to disclose limited data without permission. But whether or not information about dangerous nuclear weapons is considered limited data, the Espionage Act makes its unauthorized retention or disclosure a crime in itself.
Can a president secretly release information without leaving a written record or telling anyone?
According to specialists in the government secrecy law, that question is verging on incoherent.
In the absence of a directive rethinking a decision to release information and pass it on to the rest of the government, the action would have essentially no impact, as departments and agencies would continue to regard that information as classified and thus restrict access to it. documents it.
Hypothetical questions like ‘What if a president thinks to himself that something has been released? Does that change his status?’ are so speculative that their practical significance is negligible,” said Steven Aftergood, a secrecy specialist with the Federation of American Scientists.
He added: “It’s a logical mess. The system is not intended to be deployed in such an arbitrary manner.”