Presidential Power to Declassify Information, Explained




  • In Politics
  • 2022-09-22 19:17:47Z
  • By The New York Times
 

WASHINGTON - Former President Donald Trump's repeated claim that he had declassified all the documents that the FBI seized in the search of his Florida home last month - including those marked as top secret - has heightened interest in the scope of a president's power to declassify information.

In an interview on Fox News that was broadcast Wednesday, Trump insisted that he "declassified everything." There does not have to be a formal process to do so, he added, because "if you're the president of the United States, you can declassify just by saying 'it's declassified' - even by thinking about it."

Days after the FBI search, Trump's office claimed that as president, he had a "standing order" that materials "removed from the Oval Office and taken to the residence were deemed to be declassified the moment he removed them," according to a statement read on Fox News by a right-wing writer Trump has designated as one of his representatives to the National Archives.

No credible evidence has emerged that Trump issued any standing order to declassify everything he happened to take from the Oval Office, and national security legal specialists have greeted the notion with disdain. Glenn S. Gerstell, the top lawyer for the National Security Agency from 2015 to 2020, said the idea that whatever Trump happened to take upstairs each evening automatically became declassified - without logging what it was and notifying the agencies that used that information - was "preposterous."

The claim is also a sideshow to Trump's potential legal troubles over the document matter, because none of the three criminal laws cited in a search warrant as the basis of the investigation depend on whether documents technically contain classified information. Notably, Trump's lawyers have not repeated his claim in court, where there are professional consequences for lying; they have also resisted a judge's proposal that they submit a sworn declaration or affidavit about any declassification action.

Here is 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 public exposure is deemed likely to damage national security.

Officials with the authority to classify or declassify matters can deem information as falling into three categories: confidential, secret or top secret. Access to particularly sensitive information can be restricted even further with a designation of SCI, for sensitive compartmented information.

If information is classified, access to it is restricted. Any documents containing that information are supposed to be marked, and only officials with proper security clearances - and a "need to know" - are permitted to see them or be told of their contents. There are also rules limiting how they can be stored, physically transported or electronically transmitted.

The legal basis for the classification system comes from the president's constitutional authority as commander in chief. Presidents have established and developed it through a series of executive orders dating to the era encompassing World War II and the early Cold War. The current directive, Executive Order 13526, was issued by President Barack Obama in 2009.

(Congress established a separate system for protecting certain nuclear secrets in the Atomic Energy Act. It requires consulting the Pentagon and the Energy Department in any decision to downgrade protections and uses different terms, like "restricted data." In everyday parlance, people often refer to that kind of information as classified as well.)

Is the classification system enforced by criminal law?

Largely not.

For the most part, the classification system is about bureaucratic controls. The main punishment for disobedience is administrative: Officials can be admonished, lose their security clearances and be fired.

As such, the classification system exists in parallel to separate criminal penalties 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 that 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 Act case do not need to prove that anything was deemed classified as an element of a crime.

Prosecutors in an Espionage Act case do have to prove that such information was being closely held by the government, and such cases typically involve classified records. Trump is putting forward a situation in which he purportedly deemed national security secrets declassified without telling anyone, so the government continued to closely hold them.

A rare exception in which Congress has tied a law to the classification system is Section 1924 of Title 18 of the U.S. Code. It makes the unauthorized retention or removal of classified material a crime, so prosecutors would have to show that the information remained technically classified as an element of proving that offense to a jury. But that was not one of the laws that was listed in the search warrant as a 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 can do so. They are considered to be exercising the president's power 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 deemed information classified to oversee declassification reviews, and it sets some standards for them.

The executive branch has regulations laying out the process that should be followed, such as a requirement to make sure that other agencies and departments with an interest in the secret are consulted. There are also procedures for the removal of classification markings on documents.

Can presidents declassify matters directly?

Yes, because it is ultimately their constitutional authority.

Normally, presidents who want something declassified direct subordinates overseeing the department or agency with primary responsibility for the information to review the matter with an eye to making more of it public. But on rare occasions, presidents declassify something directly.

For example, in 2004, President George W. Bush himself declassified a portion of his presidential daily intelligence briefing from August 2001 - a month before the Sept. 11 terrorist attacks - in which he had been warned: "Bin Laden Determined to Strike in U.S."

Do presidents have to obey the usual procedures?

Even if it is true that Trump had pronounced the documents declassified while he was in office, he clearly did not follow the regular procedures. But there is no Supreme Court precedent that definitively answers whether that would make any difference.

Notably, a federal appeals court said in 2020 that "declassification, even by the president, must follow established procedures." But the context was different: That line was part of an opinion rejecting a Freedom of Information Act lawsuit involving whether Trump had declassified a covert program by discussing its existence in a tweet.

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 listing it as a focus of the investigation in the search warrant - a novel question would arise if Trump were then 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 that regulate the conduct of their subordinates in the executive branch - and that presidents can even disregard executive orders without first rescinding them. Others disagree with that vision of executive power.

Can a president secretly declassify information without leaving a written record or telling anyone?

That question, according to specialists in the law of government secrecy, is borderline incoherent.

If there is no directive memorializing a decision to declassify information and conveying that decision to the rest of the government, the action would essentially have no consequence. Departments and agencies would continue to consider that information classified and so would continue to treat it as a closely held secret, restricting access to records containing it.

"Hypothetical questions like 'What if a president thinks to himself that something is declassified? Does that change its status?' are so speculative that their practical meaning 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 meant to be deployed in such an arbitrary fashion."

What about obstruction and disobeying a subpoena?

Even if evidence emerged that Trump technically deemed the documents declassified before leaving office, that would also not help him with other legal problems arising from his hoarding of government documents despite repeated efforts to retrieve them.

The other two criminal laws cited in the search warrant affidavit - concealing or destroying government records, and concealing documents as part of an effort to obstruct an investigation or other official effort - do not have to involve national security secrets.

In May, the Justice Department obtained a grand jury subpoena for all sensitive documents remaining in Trump's possession. His representatives turned over a few while falsely saying that no others remained. Notably, it demanded all records "bearing classification markings" - not classified records - so the claim that the former president had technically declassified them would also seem to be irrelevant to whether he unlawfully defied the subpoena.

© 2022 The New York Times Company

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