WASHINGTON — Former President Donald J. Trump’s claim that he had declassified all of the documents that the F.B.I. seized in the search of his Florida home last week — including those marked as top secret — has heightened interest in 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 “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 NewsBy a right-wing writer Mr. Trump appoints as his representative to the National Archives.
National security legal experts have dismissed the idea, despite the fact that there is no evidence of such an order. Glenn S. Gerstell, the top lawyer for the National Security Agency from 2015 to 2020, pronounced the idea that whatever Mr. Trump happened to take upstairs each evening automatically became declassified — without logging what it was and notifying the agencies that used that information — “preposterous.”
The claim is also irrelevant to Mr. Trump’s potential 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 contain classified information.
The claim is still striking. Here’s a closer look at the actions that a president can take to remove government secrets from protection.
What is the classification system?
It is an administrative process that controls how federal government officials manage information whose public exposure is likely to cause national security damage.
Officials who have the authority to classify and declassify information can declare that information falls into one of three categories: secret, confidential, or top secret. Access to sensitive information can be further restricted by a designation of S.C.I. for sensitive compartmented data.
Access to classified information 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 restrictions on how these documents can be stored, transported, or transmitted electronically.
The legal basis for the classification system comes from the president’s constitutional authority as commander in chief. Through a series of executive orders, presidents have developed and established it since the time period that encompassed World War II and early Cold War. President Barack Obama issued Executive Order 13526 in 2009.
Is the classification system enforced under criminal law?
It’s not common.
The classification system is mainly about bureaucratic controls. Administrative sanctions are the most severe for disobedience: Officials can be admonished and lose their security clearances.
More coverage of F.B.I. Search of Trump’s Home
The classification system works in parallel with the separate criminal penalties Congress has imposed for security secrets protection.
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 does not mention classification status and prosecutors in an Espionage Act case don’t need to prove that anything was classified.
Section 1924 of Title 18 U.S. Code is an exception to the rule that Congress has linked a law with the classification system. It makes it a crime to unauthorized retention or removal. This was not the law that was identified in the search warrant as the focus of the investigation.
Who has the authority 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.
Is there a formal process for declassifying information
Yes. Yes.
The executive branch has regulations that outline the process to be followed. For example, it is required to ensure that other agencies or departments that have an interest in the secret are consulted. There are also procedures that allow for the removal or modification of classification markings on documents.
Can presidents declassify matters directly?
Yes, because it is their constitutional authority.
Normally, presidents who desire something to be classified direct the subordinates of the department or agency that has primary responsibility for the information to review it with the aim of making it more accessible. Rarely, presidents will declassify an item 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 the right to follow the normal procedures?
It is not clear that there is a Supreme Court precedent that answers this question.
Even if Mr. Trump did declare the documents declassified while in office, it is clear that he did not follow the normal 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 listing it as a focus of the investigation in the search warrant — a novel question would arise if Mr. 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 this view of executive power.
The statement from Mr. Trump’s office that was read aloud by the right-wing writer, John Solomon, included what appeared to be a gesture at the claim: “The idea that some paper-pushing bureaucrat, with classification authority delegated by the president, needs to approve the declassification is absurd.”
What about nuclear secrets?
They are both distinct, though they have little in common for criminal law purposes.
Congress passed the Atomic Energy Act. It imposes strict legal restrictions on mishandling of information about how to make a nuclear bomb or enrich nuclear material. Such information is called “restricted data.” Legally, it is not the same thing as being “classified” under the executive order, although in everyday parlance people often refer to it as classified.
The law established a process for deciding whether to lower such protections. The law required that military weapons protections be decided jointly by senior officials from the Energy and Defense Departments. If the two departments disagree, the law states that the president will make the final decision. At a minimum, these officials must be involved when deciding to downgrade nuclear weapons data into “formerly restricted” data.
Officials can’t disclose restricted data without authorization under the Atomic Energy Act. The Espionage Act makes it a crime to unauthorized retain or disclose nuclear weapons information, regardless of whether they are still classified as restricted data.
Can a president secretly release classified information without leaving a written document or telling anyone?
Specialists in the law and government secrecy consider this question borderline incoherent.
If there isn’t a directive naming a decision to declassify information or transmitting it to the rest, the action would have no effect as departments and agencies would continue considering that information classified and would 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 is not meant to be deployed in such an arbitrary fashion.”
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