Who Gets to Classify (and Declassify) Government Secrets?

The fact that former President Donald Trump kept over 300 classified documents at his Mar-a-Lago resort home in Florida—as well as his aides’ public insistence that he had a “standing order” to declassify any documents he took with him to his residence—have rekindled interest in America’s opaque classification system and the president’s role within it.

Evan Corcoran, one of Trump’s attorneys, even went so far as to claim that the president’s “constitutionally-based authority regarding the classification and declassification of documents is unfettered” in a May 25 letter to Department of Justice Counterintelligence and Export Control Section (CES) Chief Jay Bratt. (Corcoran’s letter was released Friday afternoon as an attachment to the partially redacted affidavit the FBI submitted while applying for a search warrant for Trump’s home.)

Although none of the three statutes listed in the FBI’s search warrant relate directly to classified information, the fact that the government alleges classified documents were improperly stored and handled is likely to be central to DOJ’s investigation.

“As a practical matter, I think it’s highly unlikely [Trump] would be charged for willful retention of [National Defense Information] unless the documents were classified,” David Laufman, a former CES chief, told The Dispatch. “The fact that the documents are classified makes stronger the case that they contain information relating to the national defense.” 

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  • Thank you for pointing out that the orange hair guy is also a treacherous sob.

  • It is obvious that the illiberal progressives and their democratic party cohorts are still trying to weave a narrative that somehow can remove Trump from ever running for office again even if it means creating an ex post facto regulation created from whole cloth. The average person remains in the dark as to the ramifications of living under a totalitarian tyrannical democratic government which also involves significant regulations against any opposition to their single party government.

  • “67 documents marked as CONFIDENTIAL, 92 documents marked as SECRET, and 25 documents marked as TOP SECRET,”

    If he declassified them then they would still be "marked classified" unless he went around with white out and took off the mark.

    I don't see how you are going to be able to prove beyond reasonable doubt these documents were not declassified. What evidence do you have that he never declassified them compared to the implicit evidence they were declassified since he took them out of the secure place? Plus he indicated he returned all the classified documents therefore any documents in his possession were unclassified.

    It seems to me the question is whether Biden or his admin "reclassified" these documents. If he did then it would seem a former president would have to comply with that.

    1. Please note that publicly exposing a classified document does not declassify it (and neither does removing the classification markings). For example, when Mr. Snowden caused classified documents to become publicly available on the interwebz, those with security clearances were forbidden to read them - because part of the privilege of holding a clearance includes the promise (under penalty of imprisonment and fine) to not access classified information to which you have no "need to know."

  • Trump: I...declare...DECLASSIFIIIIIED!!
    Everyone: Donald, you can't just say the word "declassified" and declassify everything on your possession.
    Trump: I didn't say it, I *declared* it.

    1. I recall that when I was a kid, saying "I call XYZ" made it so. You could unilaterally do that by speaking the words "I call," as long as you thought of it first. Sometimes this saved time, as when deciding on rules for a game. But we weren't deciding things that could be vastly harmful.

  • Some good point here. But I just have a REAL hard time charging the person with ABSOLUTE authority to declassify.

    1. Regardless, it all needs to go through NARA first.

      1. No it doesn't.

        The president made the executive order in the first place.

        His declassify power is absolute

        1. If you leave a job and you take files with you that belong to the company, you are potentially committing a crime, whether those files contain trade secrets or not. The Presidential Records act specifies that all Presidential records belong to the public, and are not the personal property of anyone (including the President). Presidential records automatically transfer into the legal custody of the Archivist as soon as the President leaves office.
          Trump had no right to take the documents with him when he left office and much of the activity prior to the execution of the search warrant was focused on getting the stuff back. Stuff that belongs to the public and not the President. The classification status of the documents just make the situation worse.

  • It is one thing to declassify documents affecting national security, and quite another to disclose any such documents to a party who represents a clear security risk, if not an outright enemy of the United States.

    What nearly all of the pontificating on Trump’s obvious misuse of the documents miss is the following question:

    To what use did Trump put these documents?

    If his purpose in retaining and clearly mishandling of the documents was to assist him, or a ghost writer, in writing his memoirs, that would be a non-threatening use, particularly if Trump subjected his book to prepublication review to redact clearly damaging revelations as most administration officials are required to do as a matter of policy. No harm, no foul.

    On the other hand, some who recall Trump’s cozy relationship with and damaging disclosures of sensitive human sources to Putin and to the Russian ambassador when he was in office suggest Trump may have had a more nefarious end in mind, perhaps even selling our nuclear secrets to Russia. We know that money is a huge motivator for Trump - he told us all many times. Obviously that would go far beyond a bureaucratic concern over classification into the realm of treason.

    None of us outside the DOJ knows what they know. And maybe DOJ knows, or at least has some expectation of finding that serious crimes were committed. It seems unlikely that DOJ would even pursue an investigation to this point unless they were reasonably certain that the issue is not paperwork but something much more substantive.

    We have no choice but to wait and see.

    1. Now that we are washing the public laundry, we need to keep in mind that other Presidents have probably gone off with documents marked top secret. Whether for purposes of writing a book or for other more nefarious purposes. We shall not likely ever know. But in the case of Trump, the obvious reason is that the opposition party is bent out of shape because Trump has interrupted the left's intention to creating their own single party totalitarian government..

      1. This is not a new situation - every time there is a change in Presidents the National Archives, by law, is entitled to receive all original documents generated by that President's administration. This is the first time in history in which any President has refused to comply with an Archives document demand. So no, other Presidents have not done this before.

        Trump was clearly and obviously intent on establishing his own authoritarian government, while there is zero evidence that Biden or his party has ever attempted to do the same, or any real Republican either (Trump is no Republican - Trump is a Trumplican). No President in history has ever claimed that his electoral defeat was illegal. Ever, Republican or Democrat.

        Stop attempting to excuse Trump's outrageous lawbreaking as something that ever in the history of our nation was normalized, legalized, or otherwise agreed as acceptable behavior.

    2. https://abcnews.go.com/US/weeks-mar-lago-search-trump-dod-official-vowed/story?id=88461618
      All Presidents have access to the archives for the purpose of writing memoirs, etc. However, most Presidents have not been the subject of multiple investigations and/or held lifelong grudges against political opponents. If you remember, Trump fired Mark Esper days after the 2020 election and then sent a couple of his most faithful cronies over into DoD to try to ferret out documents related to the Mueller probe, Clinton investigation, etc. That included Kash Patel, who now appears to be at the center of parts of this investigation.

  • Good coverage of classified National Security Information. Not particularly relevant to Trump's actions (I sincerely hope), but a pretty good chunk of highly sensitive information is not covered by the EO, namely nuclear weapon design, development, testing, and deployment information covered by the Atomic Energy Act of 1954, as amended, categorized as Restricted Data (RD). Routine authorities and handling requirements are similar, except that there is no such thing as Original Classification Authority, and different access authorization (security clearance) is needed.

  • Great, Substack is down again.
    Edit: Well, some of it is, anyway.

  • Bravo for specifying exactly what the president is commander in chief of!

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