WASHINGTON >> Former President Donald Trump’s claim that he had declassified all of the documents that the FBI 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, 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 News by a right-wing writer Trump has designated as one of his representatives to the National Archives.
Apart from whether there is any evidence that such an order actually existed, the notion has been greeted with disdain by national security legal specialists. Glenn S. Gerstell, the top lawyer for the National Security Agency from 2015 to 2020, pronounced 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 — “preposterous.”
The claim is also irrelevant to 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.
Still, the novel claim is striking. 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.
Is the classification system enforced by criminal law?
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.
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, which makes the unauthorized retention or removal of classified material a crime. 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 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?
There is no Supreme Court precedent definitively answering that question.
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.
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.
The statement from 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 distinct, although for purposes of criminal law there is little substantive difference.
Congress has 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 “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 making decisions about downgrading such protections. For those involving military weapons, Congress mandated that the decision be made jointly by senior officials at the energy and defense departments; if the two departments disagree about whether to do so, the law says the president makes the final determination. So at a minimum, those officials must be involved in any decision to downgrade nuclear weapons information into so-called formerly restricted data.
The Atomic Energy Act made it a crime for officials to disclose restricted data without authorization. But whether or not dangerous nuclear weapons information remains deemed to be 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 specialists in the law of government secrecy, is borderline incoherent.
If there is no directive memorializing a decision to declassify information and conveying it to the rest of the government, the action would essentially have no consequence, as departments and agencies would continue to consider that information classified and so would continue to restrict 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.”
This article originally appeared in The New York Times.