WASHINGTON — Former President Donald J. Trump’s claim that he had declassified all the documents that the F.B.I. seized within the search of his Florida home last week — including those marked as top secret — has heightened interest within the scope of a president’s power to declassify information.
On Friday, Mr. Trump’s office claimed that when he was president, he had a “standing order” that materials “faraway from the Oval Office and brought to the residence were deemed to be declassified the moment he removed them,” in keeping with a statement read on Fox News by a right-wing author Mr. Trump has designated as certainly one of his representatives to the National Archives.
Aside from whether there may be any evidence that such an order actually existed, the notion has been greeted with disdain by national security legal specialists. Glenn S. Gerstell, the highest lawyer for the National Security Agency from 2015 to 2020, pronounced the concept that whatever Mr. Trump happened to take upstairs each evening robotically became declassified — without logging what it was and notifying the agencies that used that information — “preposterous.”
The claim can also be irrelevant to Mr. Trump’s potential troubles over the document matter, because not one of the three criminal laws cited in a search warrant as the premise of the investigation rely upon whether documents contain classified information.
Still, the novel claim is striking. Here is a more in-depth take a look at what a president can and can’t do in relation to removing protections for presidency secrets.
What’s the classification system?
It’s the executive process by which the federal government controls how executive branch officials handle information whose potential public exposure is deemed more likely to damage national security.
Officials with the authority to categorise or declassify matters can deem information as falling into three categories: confidential, secret or top secret. Access to particularly sensitive information may be restricted even further with a designation of S.C.I., for sensitive compartmented information.
If information is classed, access to it’s restricted. Any documents containing that information are speculated to be marked, and only officials with proper security clearances — and a “have to know” — are permitted to see them or be told of their contents. There are also rules limiting how they may 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 executives orders dating to the era encompassing World War II and the early Cold War. The present directive, Executive Order 13526, was issued by President Barack Obama in 2009.
Is the classification system enforced by criminal law?
For essentially the most part, the classification system is about bureaucratic controls. The major punishment for disobedience is administrative: Officials may be admonished, lose their security clearances and be fired.
More Coverage of the F.B.I. Search of Trump’s Home
As such, the classification system exists in parallel to separate criminal penalties Congress has imposed to guard security secrets.
For instance, the Espionage Act of 1917 — certainly one of the laws cited within the search warrant — protects secrets that it defines as defense-related information that might harm america or aid a foreign adversary. It makes no reference to classification status, and prosecutors in an Espionage Act case don’t have 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 U.S. Code, which makes the unauthorized retention or removal of classified material a criminal offense. But that was not certainly one of the laws that was listed within the search warrant as a spotlight of the investigation.
Who has the facility to categorise and declassify information?
In the traditional course of business, certain officials who’ve been designated as “original classification authorities” in federal departments and agencies can achieve this. They’re 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 top of the department or agency that originally deemed information classified to oversee declassification reviews, and it sets some standards for them.
The manager branch has regulations laying out the method that ought to be followed, comparable to a requirement to make sure that that other agencies and departments with an interest in the key are consulted. There are also procedures for the removal of classification markings on documents.
Can presidents declassify matters directly?
Yes, since it is ultimately their constitutional authority.
Normally, presidents who want something declassified direct subordinates overseeing the department or agency with primary responsibility for the data to review the matter with an eye fixed to creating more of it public. But on rare occasions, presidents declassify something directly.
For instance, in 2004, President George W. Bush himself declassified a portion of his presidential day by day intelligence briefing from August 2001 — a month before the Sept. 11 terrorist attacks — during which he had been warned: “Bin Laden Determined to Strike in U.S.”
Do presidents must obey the standard procedures?
There isn’t any Supreme Court precedent definitively answering that query.
Even whether it is true that Mr. Trump had pronounced the documents declassified while he was in office, he clearly didn’t follow the regular procedures.
Within 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 criminal offense — despite not listing it as a spotlight of the investigation within the search warrant — a novel query would arise if Mr. Trump were then to repeat the claim as a defense.
Proponents of a robust view of presidential power have argued in other contexts that presidents aren’t personally certain by the principles and procedures that regulate the conduct of their subordinates in the manager branch — and that presidents may even disregard executive orders without first rescinding them. Others disagree with that vision of executive power.
The statement from Mr. Trump’s office that was read aloud by the right-wing author, John Solomon, included what gave the impression to be a gesture at them claim: “The concept that some paper-pushing bureaucrat, with classification authority delegated by the president, must approve the declassification is absurd.”
What about nuclear secrets?
They’re distinct, although for purposes of criminal law there may be little substantive difference.
Congress has passed a law, the Atomic Energy Act, that imposes its own legal restrictions on mishandling details about the best way to construct a nuclear bomb or enrich nuclear material. Such information known as “restricted data.” Legally, it isn’t the identical thing as being “classified” under the manager order, although in on a regular basis parlance people often discuss with it as classified.
The law established a process for making decisions about downgrading such protections. For those involving military weapons, Congress mandated that the choice be made jointly by senior officials on the Energy and Defense Departments; if the 2 departments disagree about whether or to not achieve this, the law says the president makes the ultimate determination. So at a minimum, those officials should be involved in any decision to downgrade nuclear weapons information into so-called formerly restricted data.
The Atomic Energy Act made it a criminal offense for officials to reveal restricted data without authorization. But whether or not dangerous nuclear weapons information stays deemed to be restricted data, the Espionage Act individually makes its unauthorized retention or disclosure a criminal offense.
Can a president secretly declassify information without leaving a written record or telling anyone?
That query, in keeping with specialists within the law of presidency secrecy, is borderline incoherent.
If there isn’t any directive memorializing a call to declassify information and conveying it to the remainder of the federal government, the motion would essentially haven’t any consequence, as departments and agencies would proceed to contemplate that information classified and so would proceed to limit access to documents 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 isn’t meant to be deployed in such an arbitrary fashion.”