The legal questions they raise are less clear-cut than the former president’s critics imagine.
The legal questions they raise are less clear-cut than the former president’s critics imagine.
L eave it to the incomparable Jim Geraghty to find an informative legal precedent potentially applicable to former President Trump’s claim that he declassified the allegedly classified information retrieved by the FBI from his Mar-a-Lago estate. Jim contends that the law says “there has to be a legal record of the declassification — a verbal ‘standing order’ doesn’t cut it.” If Congress steps into the breach to regulate procedures for declassifying intelligence (or at least tries to — more on that momentarily), one would hope that lawmakers would prescribe formal, written memorialization requirements such as the ones Jim has suggested already exist.
Alas, lawmakers have not yet done that.
Jim derives his claim from a Trump-era (of course!) Second Circuit case, New York Times v. CIA. But that case presents a very different situation from the one Trump finds himself in now.
The Times and its reporter, Matthew Rosenberg, were claiming declassification by implication. They contended that through a tweet and other public statements acknowledging a presumably classified program (specifically, our government’s support for the “moderate” Syrian rebels opposed to Bashar al-Assad), Trump had effectively, if inadvertently, declassified the existence of the program, such that the government should not be heard to claim that it was shielded from Freedom of Information Act disclosure because it was classified. That is, the responsible officials — known as the “classification authority” — were arguing that no authorized official had ever formally declassified the information, and that in the absence of evidence that it was formally declassified, the court should not deduce that the information was implicitly declassified due to a couple of improvident presidential public statements. Lacking evidence that there had been an authorized declassification, it was only natural that the Circuit relied on the fact that formal declassification procedures had not been followed.
By contrast, in the case of the material the FBI took from Mar-a-Lago, we are dealing with the government’s principal declassification authority: the president. Trump is not claiming that he declassified this information by implication, but that he did so by explication. Trump, who was undoubtedly authorized to declassify intelligence, is saying that, while he was president, he personally declassified the intelligence in dispute. There is no law prescribing the minimum that the president must do in order to effect declassification. The directive on which the Second Circuit relied in finding that agency declassification procedures had not been followed in Times v. CIA was an executive order (EO 13,256), not a statute. It bound (and binds) the president’s subordinate executive officials and agencies, but not the president himself; he is bound only by the Constitution.
Could Congress conceivably constrain the president’s power to classify or declassify national-security information? The Congressional Research Service has posed just this question in recent days, and the answer is that we can’t say for sure.
Basically, since World War II, presidents have assumed plenary authority over classification, citing their constitutional powers as commander-in-chief and chief executive. In past dicta, the Supreme Court has appeared to endorse this arrangement. For example, as CRS notes, in Navy v. Egan (1988), the Court observed that the president’s “authority to classify and control access to information bearing on national security . . . flows primarily from this Constitutional investment of power in the President and exists quite apart from any explicit congressional grant.” President George W. Bush, for one, relied on this language in an executive caveat issued when he signed intelligence and terrorism legislation in 2004, arguing that the provisions in which Congress “purport[ed] to regulate access to classified national security information” were unconstitutional — at least when applied to the president.
Of course, as President Bush found in such areas as detaining enemy combatants and authorizing military commissions, what is assumed to be plenary executive authority for decades can be significantly constrained if competing constitutional claims are raised to challenge it under new circumstances. Congress is constitutionally barred from taking executive action, but in the realm of legislation, it has expansive authority under Article I to make rules for government and regulate the armed forces, authority that is inextricably entangled with national-defense information.
Personally, I believe that, if Congress prescribed narrow rules for classifying and declassifying information (just as it has prescribed criminal penalties for the mishandling of classified information), they would be upheld by the courts as long as they did not appear to compromise the president’s power to conduct foreign policy, command the armed forces, and maintain national security (including, e.g., the security of nuclear facilities). But that is just my surmise. In the here and now, Congress has not enacted standards requiring a written memorialization or some other contemporaneous evidence that the president has exercised his declassification authority.
And thus we see the major difference between a potential prosecution of Trump and the Second Circuit case Jim cites. In the latter, the question was whether third parties could gain access to information no authorized person in the government had explicitly, intentionally declassified, under circumstances in which the president had acted in a manner inconsistent with the information’s being classified. In a prosecution of Trump, to the contrary, the question would be: Could the government prove beyond a reasonable doubt that he intentionally possessed classified information in an unauthorized place, given that he previously had the authority to declassify that information, he says he exercised that authority, and he might well believe that whatever he did to effect declassification was sufficient?
In a nutshell, I agree with what I take to be Jim’s point that Trump did not do enough to declassify the information such that a third party could now obtain it over the government’s objection (especially since I assume that, just to be on the safe side, the Biden administration has re-classified whatever information Trump says he declassified). Nevertheless, it would be a mistake to try to prosecute Trump on the theory that he didn’t do enough to declassify the information. (I’d note that the search warrant cites Section 2071 of the federal penal code, which makes removing government records a crime regardless of whether the records are classified. I’d be surprised if Trump is indicted for this, but such an indictment would be easier to sustain than one in which the knotty classification issue would have to be confronted.)
For what it’s worth, my guess is that congressional Democrats, along with Trump-hostile Republicans (and/or Republicans indifferent to or conflicted about Trump), will propose legislation that would have the effect of rebuking what the former president has done here. That would allow them to go on offense. Even the Trumpiest of pro-Trumpers, unless they’ve lost all reason, would be loath to defend cavalier handling of classified information in a legislative debate. By contrast, a criminal charge would put the anti-Trump forces on defense, as pro-Trumpers argued that he was being selectively prosecuted in a manner that was unprecedented for the entirely political purpose of preventing him from running against Biden in 2024.
I believe that the anti-Trump forces would be willing to take on that fight in order to prosecute Trump on a January 6 offense, because they’re confident the Capitol riot gives them the moral and political high ground. But it seems highly unlikely that they’ll prosecute him on a government-records offense, whether the records in question were classified or not.