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 moved to the residence were considered declassified at the time he removed them,” according to a statement. was read on Fox News by a right-wing writer whom Mr. Trump has appointed as one of his National Archives spokespeople. Unless there is evidence that such a mandate actually existed, the idea has been greeted with disdain by national security legal experts. Glenn S. Gerstell, the National Security Agency’s top lawyer from 2015 to 2020, floated the idea that whatever Mr. Trump came up with each night was automatically declassified — without recording what it was and notifying the agencies that used this information— “Outrageous.” The claim is also irrelevant to Mr. Trump’s potential problems with the document’s subject matter because none of the three criminal statutes cited in a search warrant as the basis of an investigation depend on whether the documents contain classified information. Still, the new claim is startling. 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 through which the federal government controls how executive branch officials handle information whose potential public exposure is deemed likely to harm national security. Officials with the authority to classify or declassify matters can consider information to fall into three categories: confidential, secret, or top secret. Access to highly sensitive information can be further restricted by naming SCI, for sensitive compartment information. If the information is classified, access to it is restricted. Any documents containing this information are supposed to be redacted, and only employees with the appropriate security clearances — and “need to know” — are allowed to 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. Presidents established and developed it through a series of executive orders dating back to the era spanning World War II and the early Cold War. The current directive, Executive Order 13526, was issued by President Barack Obama in 2009.
Is the classification system enforced by criminal law?
To a large extent no. For the most part, the classification system is about bureaucratic checks. The primary punishment for disobedience is administrative: Employees can be warned, lose their security clearances, and be fired.
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Therefore, 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 referenced in the search warrant—protects secrets it defines as defense-related information that could harm the United States or help a foreign adversary. It makes no mention of classification status, and prosecutors in an Espionage Act case do not have to prove that anything was classified. A rare exception, where Congress has linked a law to the classification system, is Section 1924 of Title 18 of the US Code, which makes it a crime to retain or remove classified material without authorization. But that wasn’t one of the laws listed in the search warrant as the focus of the investigation.
Who has the authority to classify and declassify information?
In the ordinary course of business, certain employees designated as “initial classification authorities” in federal departments and agencies may do so. They are deemed to exercise the power of the president in 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 deemed the information to be classified to oversee declassification reviews and sets certain standards for them. The executive branch has regulations that set out the procedure to be followed, such as the requirement to ensure that other agencies and agencies with an interest in the secret are consulted. There are also procedures for de-marking documents.
Can presidents declassify issues directly?
Yes, because it is their constitutional authority after all. Normally, presidents who want something declassified, direct reports overseeing the department or agency with primary responsibility for the information to look into the matter with the goal of making more public. But on rare occasions, presidents declassify something outright. For example, in 2004, President George W. Bush himself declassified a portion of the presidential daily briefing from August 2001 — a month before the 9/11 terrorist attacks — in which he had warned: “Bin Laden was determined to strike in the USA “
Should presidents obey normal procedures?
There is no Supreme Court precedent that definitively answers this question. Even if it is true that Mr. Trump had declared the documents declassified while in office, he clearly did not follow due process. In the unlikely event that the Justice Department were to charge him under the law that makes it a crime to retain or remove classified material without authorization — despite not listing it as a focus of investigation in the search warrant — a new question would arise as to whether Mr. Trump was then to repeat the claim in his 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 executive subordinates—and that presidents can even ignore executive orders without first to cancel them. Others disagree with this executive branch vision. The statement from Mr. Trump’s office read aloud by right-wing writer John Solomon included what appeared to be a gesture toward their claim: “The idea that some paper-pushing bureaucrat with a classification authority authorized by the president, needs to approve the declassification is absurd.”
What about nuclear secrets?
They are distinct, although for the purposes of criminal law there is little substantive difference. Congress passed a law, the Atomic Energy Act, that imposes its own legal restrictions on mishandling information about how to build a nuclear bomb or enrich nuclear material. Such information is called “limited data”. Legally, it is not the same thing 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 such 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 or not to do so, the law says the president makes the final decision. So, at the very least, these officials must be involved in any decision to downgrade nuclear weapons information to the so-called earlier limited data. The Atomic Energy Act made it a crime for officials to disclose restricted data without authorization. However, regardless of whether information about dangerous nuclear weapons is still 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 privacy law, is borderline incoherent. If there is no directive memorializing a decision to declassify information and transmitting it to the rest of the government, the action would be of virtually no consequence, as agencies and departments would still consider that information classified and thus continue to restrict access to documents containing the. “Hypothetical questions like, ‘What if a president believes in himself that something has been declassified?’ Does this change his regime?’ they are so speculative that their practical significance is negligible,” said Steven Aftergood, a privacy expert at the Federation of American Scientists. He added: “It’s a logical mess. The system is not meant to be developed in such an arbitrary manner.”
