EXPLANATOR: Declassification in focus during Trump investigation

Published by
Peter Kavinsky

In the weeks since the FBI searched Donald Trump’s Mar-a-Lago property and seized about 100 documents with classification marks, the former president insisted he did nothing wrong and argued that he declassified the information.

He doubled down on that point on Wednesday, saying in a Fox News interview that a president can declassify material “even thinking about it.”

Trump did not provide any evidence that he declassified the documents, an appeals court noted on Wednesday as it rejected his team’s legal arguments and paved the way for investigators to continue examining the documents as they consider whether to file criminal charges.

A special master charged with inspecting the documents also expressed skepticism when Trump’s lawyers suggested the same defense earlier this week but declined to offer any support for the idea that the documents had been declassified.

Democrats on Thursday were more trenchant: House Intelligence Committee Chairman Adam Schiff tweeted: “That’s not how any of this works. Nor by any stretch of the imagination.” Committee member Joaquin Castro called the claim “false and absurd”.

Presidents have broad authority to declassify material, experts say, but there is a detailed process unlike what Trump has described. Here’s how declassification works:

WHAT CAN A PRESIDENT DECLASSIFY?

Incumbent presidents have “unilateral and complete authority” to declassify material, although it does not fully extend to classified information under the Atomic Energy Act, said national security attorney Bradley P. Moss.

Since the time of President Harry S. Truman, there has been a defined process for protecting the nation’s secrets, including different levels of classification, said Glenn Gerstell, former National Security Agency general counsel.

“It is extremely important that we do not accidentally release information that, especially in the case of top-secret information, could cause exceptionally serious harm to national security,” he said.

HOW DOES DECLASSIFICATION WORK?

There is also a detailed process for disqualification with rules set out in executive order. Typically, if a president wants to declassify something, he checks with the responsible agency, which has broad influence over whether the information becomes public, Gerstell said.

If documents are declassified, there is usually a painstaking process of hiding what information still remains secret. “It’s not about a concept being declassified, or boxes of documents. It is a word-for-word determination,” he said.

The declassification order must be memorialized and any affected agencies must be notified, Moss said. Individual documents must be re-marked to show that they are no longer considered classified.

“It’s unclear what Jedi-type lawyers said you could declassify things with a thought, but the courts are unlikely to accept that claim,” said Jonathan Turley, a George Washington University law professor who was a Republican witness during the first impeachment process. against Trump in 2019.

The Justice Department said there was no indication that Trump took steps to declassify documents seized from his Florida home.

HOW DOES TRUMP DEGRADE INFORMATION BEFORE?

There is no doubt that there were times during the Trump administration when he took affirmative and very public steps to declassify information – particularly when he saw a potential political benefit.

His administration, for example, has repeatedly declassified information related to the FBI investigation into possible coordination between Russia and the 2016 Trump campaign, hoping to publicly affect perceptions of the investigation.

The information included transcripts of phone calls between Trump’s first national security adviser, Michael Flynn, and the Russian ambassador, as well as a House Republican memo alleging FBI misconduct in obtaining a secret national security surveillance warrant to monitor. a former Trump campaign adviser. .

These actions raise questions about why he has not made similar public pronouncements for the documents recovered from Mar-a-Lago if he wants them to be later considered declassified.

HOW MAY THIS AFFECT THE LARGER CASE?

The roughly 100 documents with classification markings were among about 11,000 documents the FBI seized last month during a court-authorized search of Trump’s Florida club.

Federal agents are investigating possible violations of three different federal laws, including one governing the collection, transmission or loss of defense information under the Espionage Act, according to the search warrant.

The declassification debate has been especially heated since the Justice Department included a photo in a court filing of some of the seized documents with colored title pages indicating their classified status.

But the issue may not be the most important in terms of whether criminal charges are brought, since classification status is not part of the laws in question.

“Even if he disqualifies them, that would not necessarily be a defense against the charges being considered,” said Elizabeth Goitein, an expert on national security law at the Brennan Center for Justice.

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More on investigations related to Donald Trump: https://apnews.com/hub/donald-trump.

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Associated Press writers Eric Tucker and Mary Clare Jalonick contributed to this report.

Peter Kavinsky

Peter Kavinsky is the Executive Editor at cablefreetv.org

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