Declassification in spotlight during Trump probe

What can a president declassify?

Sitting presidents do have “unilateral and complete authority” to declassify material, though it doesn’t fully extend to information classified under the Atomic Energy Act, said national security attorney Bradley P. Moss.

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

“It’s critically important that we don’t accidentally release information that, especially in the case of top secret information, could cause exceptionally grave damage to national security,” he said.

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How does declassification work?

There’s also a detailed process for declassification with rules laid out under executive order. Typically, if a president wants to declassify something, he checks with the agency in charge, which has broad say in whether the information becomes public, Gerstell said.

If documents are declassified, there’s usually a painstaking process of blacking out what information still stays secret. “It’s not a question of a concept being declassified, or boxes of documents. It’s a word by word determination,” he said.

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

“It’s not clear what Jedi-like lawyers said that you could declassify things with a thought, but the courts are unlikely to embrace that claim,” said Jonathan Turley, a George Washington University law professor who was a Republican witness during the first impeachment proceedings against Trump in 2019.

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

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'Stretch of imagination'

Trump has provided no evidence that he did declassify the papers, an appeals court noted Wednesday as it rejected his team’s legal arguments and cleared the way for investigators to continue scrutinising the documents as they consider whether to bring criminal charges.

A separate special master tasked with inspecting the documents also expressed scepticism when Trump’s lawyers hinted at the same defence earlier this week but declined to offer any support for the idea that the papers had been declassified.

Democrats on Thursday were more pointed: House Intelligence Committee Chairman Adam Schiff tweeted, “That's not how any of this works. Not by any stretch of the imagination.” Committee member Joaquin Castro called the claim “ false and absurd.”

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How has Trump declassified information before?

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

His administration, for instance, repeatedly declassified information related to the FBI’s investigation into possible coordination between Russia and the 2016 Trump campaign, in hopes of publicly affecting the perception of the probe.

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 that alleged misconduct by the FBI in obtaining a secret national security surveillance warrant to monitor a former Trump campaign adviser.

Those actions raise questions about why he did not make similar public pronouncements for the documents recovered from Mar-a-Lago, if he wished for them to later be regarded as declassified.

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How could this affect the broader case?

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

Federal agents are investigating potential violations of three different federal laws, including one that governs gathering, transmitting or losing 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 one court filing of some of the seized documents with colored cover sheets indicating their classified status.

But the question may not be the most important one in terms of whether criminal charges are filed since classification status isn’t part of the laws in question.

“Even if he declassified them, that would not necessarily be a defense against the charges that are under consideration,” said Elizabeth Goitein, a national security law expert at the Brennan Center for Justice.

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