Posted on 06/10/2023 8:47:52 PM PDT by pangaea6
The blockbuster article in The Washington Post saying President Donald Trump had "revealed highly classified information to the Russian foreign minister and ambassador in a White House meeting" didn’t just put the White House on the defensive. It also put Republican lawmakers in a tight spot.
One of the members of Congress who commented after the newspaper’s revelations was Sen. James Risch, R-Idaho. According to CNN, he told reporters, "The minute the president speaks about it to someone, he has the ability to declassify anything at any time without any process."
Is that accurate? Independent experts said Risch is on target concerning the legal powers of the president. Some experts added, however, that the senator’s formulation left out some context that is relevant for assessing Trump’s alleged actions.
The president’s classification and declassification powers are broad Experts agreed that the president, as commander in chief, is ultimately responsible for classification and declassification. When people lower in the chain of command handle classification and declassification duties — which is usually how it’s done — it’s because they have been delegated to do so by the president directly, or by an appointee chosen by the president.
The majority ruling in the 1988 Supreme Court case Department of Navy vs. Egan — which addressed the legal recourse of a Navy employee who had been denied a security clearance — addresses this line of authority.
"The President, after all, is the ‘Commander in Chief of the Army and Navy of the United States’" according to Article II of the Constitution, the court’s majority wrote. "His 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."
Steven Aftergood, director of the Federation of American Scientists Project on Government Secrecy, said that such authority gives the president the authority to "classify and declassify at will."
In fact, Robert F. Turner, associate director of the University of Virginia's Center for National Security Law, said that "if Congress were to enact a statute seeking to limit the president’s authority to classify or declassify national security information, or to prohibit him from sharing certain kinds of information with Russia, it would raise serious separation of powers constitutional issues."
The official documents governing classification and declassification stem from executive orders. But even these executive orders aren’t necessarily binding on the president. The president is not "obliged to follow any procedures other than those that he himself has prescribed," Aftergood said. "And he can change those."
Indeed, the controlling executive order has been rewritten by multiple presidents. The current version of the order was issued by President Barack Obama in 2009.
The national-security experts at the blog Lawfare wrote in the wake of the Post’s revelation that the "infamous comment" by President Richard Nixon — that "when the president does it, that means that it is not illegal" — "is actually true about some things. Classified information is one of them. The nature of the system is that the president gets to disclose what he wants."
Two caveats So Risch’s comment holds water when it comes to the extent of the president’s powers. But some experts said that Risch’s formulation leaves out some notable aspects of the particular case involving Trump.
The first caveat: While Trump has the power to declassify information, he doesn’t appear to have done that in this case, at least at the time the story broke.
"There’s no question that the president has broad authority to declassify almost anything at any time without any process, but that’s not what happened here," said Stephen I. Vladeck, professor at the University of Texas School of Law. "He did not, in fact, declassify the information he shared with the Russians, which is why The Washington Post did not publish that information." Instead, Vladeck said, Trump "took it upon himself to authorize officials from a foreign government to receive classified national security information that was itself derived from a different foreign government’s intelligence gathering. That’s just not the same thing as what Sen. Risch described, and the law on this topic is far murkier."
Elizabeth Goitein, co-director of the Liberty & National Security Program at New York University’s Brennan Center, agreed that Risch’s point speaks to general presidential authority but not what happened in this particular case.
"Trump surely would not concede that the information in question is now ‘unclassified’ and available to anyone who files a (Freedom of Information Act) request," she said. "The relevant question, therefore, is not whether the president can spontaneously declassify information, but whether the president is permitted to disclose sensitive national security information to anyone he wishes."
Turner noted, however, that this isn’t necessarily a big distinction, since the president is ultimately the decider of what is classified and not. If his appointees disagree with his actions, "he can overrule their decisions," Turner said. "Within the Executive Branch the president is the boss."
The second caveat: Just because something is legal doesn’t mean that it’s a smart idea.
"The important caveat is that ‘legal’ and ‘sensible’ may be different things," said John Pike, the director of globalsecurity.org. "It may be legal, but it may fail to avoid the appearance of impropriety."
Setting aside ethics, doing what Trump is alleged to have done could have negative practical consequences for the United States. "It could wreck the underlying intelligence-sharing agreement and place the U.S. at a disadvantage," Aftergood said.
That said, the line between wise and unwise is a judgment call.
On the one hand, Turner agreed that alienating an ally by not following their orders "could have very serious consequences."
On the other hand, he said, it’s not outlandish to argue that sharing closely held information with Russia could advance, rather than hurt, national interests.
Turner said it may be "in America’s interest to cooperate with Russia in the struggle against ISIS, including sharing intelligence information that may help save Russian lives and seeking information that may save American lives and those of other potential victims of ISIS attacks. Obviously, in the process we will want to safeguard sources and methods that might weaken our ability to keep track of what President Putin is up to--as he is potentially a greater threat to our security than is ISIS. But the struggle against ISIS is an area where the United States and Russia have a shared interest."
In a statement to PolitiFact, Risch’s office said that criticism of the wisdom of Trump's action would be a personal opinion, but such sentiments would not speak to "the letter of the law."
"Sen. Risch can tell you that all former presidents of the United States spoke regularly with heads of states and discussed classified matter, if they determined it to be in the best interest of the American people," the statement said.
Our ruling Risch said, "The minute the president speaks about it to someone, he has the ability to declassify anything at any time without any process."
We found broad agreement that a president, using powers granted by the Constitution, is able to declassify essentially anything. However, experts added that Risch’s comment was not entirely on point for the particular situation involving Trump.
In this case, it appears Trump didn’t actually use his declassification power before talking to the Russian officials, and just because Trump’s actions were legal doesn’t necessarily mean they were wise. These caveats add nuance to analyses of what Trump did.
The statement is accurate but needs clarification and additional information, so we rate it Mostly True.
The President decides what is classified, not some affirmative action administrative state parasitic bureaucrat.
ARTICLE II
SECTION 1. The executive power shall be vested in a President of the United States.
Department of the Navy v. Egan, 484 U.S. 518 (1988)
The President, after all, is the “Commander in Chief of the Army and Navy of the United States.” U.S.Const., Art. II, § 2. His authority to classify and control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position in the Executive Branch that will give that person access to such information flows primarily from this constitutional investment of power in the President, and exists quite apart from any explicit congressional grant. See Cafeteria Workers v. McElroy, 367 U. S. 886, 367 U. S. 890 (1961). This Court has recognized the Government’s “compelling interest” in withholding national security information from unauthorized persons in the course of executive business. Snepp v. United States, 444 U. S. 507, 444 U. S. 509, n. 3 (1980). See also United States v. Robel, 389 U. S. 258, 389 U. S. 267 (1967); United States v. Reynolds, 345 U. S. 1, 345 U. S. 10 (1953); Totten v. United States, 92 U. S. 105, 92 U. S. 106 (1876). The authority to protect such information falls on the President as head of the Executive Branch and as Commander in Chief.
Since World War I, the Executive Branch has engaged in efforts to protect national security information by means of a classification system graded according to sensitivity. See Note, Developments in the Law — The National Security Interest and Civil Liberties, 85 Harv.L.Rev. 1130, 1193-1194 (1972). After World War II, certain civilian agencies, including the Central Intelligence Agency, the National Security Agency, and the Atomic Energy Commission, were entrusted with gathering, protecting, or creating information bearing on national security. Presidents, in a series of Executive Orders, have sought to protect sensitive information and to ensure its proper classification throughout the Executive Branch by delegating this responsibility to the heads of agencies. See Exec.Order No. 10290, 3 CFR 789 (1949-1953 Comp.); Exec.Order No. 10501, 3 CFR 979 (1949-1953 Comp.); Exec.Order No. 11652, 3 CFR 678 (1971-1975 Comp.); Exec.Order No. 12065, 3 CFR 190 (1979); Exec.Order No. 12356, § 4.1(a), 3 CFR 174 (1983).
Pursuant to these directives, departments and agencies of the Government classify jobs in three categories: critical sensitive, noncritical sensitive, and nonsensitive. Different types and levels of clearance are required, depending upon the position sought. A Government appointment is expressly made subject to a background investigation that varies according to the degree of adverse effect the applicant could have on the national security. See Exec.Order No. 10450, § 3, 3 CFR 937 (1949-1953 Comp.).
It should be obvious that no one has a “right” to a security clearance. The grant of a clearance requires an affirmative act of discretion on the part of the granting official. The general standard is that a clearance may be granted only when “clearly consistent with the interests of the national security.” See, e.g., Exec.Order No. 10450, §§ 2 and 7, 3 CFR 936, 938 (1949-1953 Comp.); 10 CFR § 710.10(a) (1987) (Department of Energy); 32 CFR § 156.3(a) (1987) (Department of Defense). A clearance does not equate with passing judgment upon an individual’s character. Instead, it is only an attempt to predict his possible future behavior and to assess whether, under compulsion of circumstances or for other reasons, he might compromise sensitive information. It may be based, to be sure, upon past or present conduct, but it also may be based upon concerns completely unrelated to conduct,
such as having close relatives residing in a country hostile to the United States. “[T]o be denied [clearance] on unspecified grounds in no way implies disloyalty or any other repugnant characteristic.” Molerio v. FBI, 242 U.S.App.D.C. 137, 146, 749 F.2d 815, 824 (1984). The attempt to define not only the individual’s future actions but those of outside and unknown influences renders the “grant or denial of security clearances . . . an inexact science at best.” Adams v. Laird, 136 U.S.App.D.C. 388, 397, 420 F.2d 230, 239 (1969), cert. denied, 397 U.S. 1039 (1970).
Predictive judgment of this kind must be made by those with the necessary expertise in protecting classified information. For “reasons . . . too obvious to call for enlarged discussion,” CIA v. Sims, 471 U. S. 159, 471 U. S. 170 (1985), the protection of classified information must be committed to the broad discretion of the agency responsible, and this must include broad discretion to determine who may have access to it. Certainly, it is not reasonably possible for an outside nonexpert body to review the substance of such a judgment and to decide whether the agency should have been able to make the necessary affirmative prediction with confidence. Nor can such a body determine what constitutes an acceptable margin of error in assessing the potential risk. The Court accordingly has acknowledged that, with respect to employees in sensitive positions,
“there is a reasonable basis for the view that an agency head who must bear the responsibility for the protection of classified information committed to his custody should have the final say in deciding whether to repose his trust in an employee who has access to such information.”
https://supreme.justia.com/cases/federal/us/484/518/
There are Federal statutes that make it a crime to mishandle or share classified materials, but there is no Federal statute that explicitly defines what constitutes “classified materials.” Instead, the definition of “classified materials” lies entirely within the executive branch of the government. And since the President (by definition) cannot be subject to the authority of personnel in executive branch departments that report to him, he cannot ever be doing something illegal by sharing or publicizing information that had previously been deemed “classified” by his subordinates.
Makes total sense, therefore this explanation will never be heard on MSM
If we are talking about the indictment, at least one charge seems to be related to him sharing classified information with people who did not have the right or need to know it after he was no longer president and could not declassify the document in question. In tha audio he acknowledges he could no longer declassify it. There is no question he could have done so as president, but that is not what is being alleged. If there was no record of him declassifying the document while president and the document still contained classification marks, he will have a hard time proving the document was declassified when he shared it (assuming the event took place as the transcript appears to show).
As Paul Sperry has reported Jack Smith doesn’t even have the document so there in fact is no way to determine whether or not it is in fact a classified document or him just waving around an envelope and saying that was secret
So unless someone can say with their eyes they saw the document and this is what’s in it. They don’t have much of a case.
Bttt
IF Paul Sperry is correct, then it makes it very difficult for the prosecution to make their case on that charge unless they have witnesses, as you say. So far, Sperry is the only one making that claim. We’ll see.
This would only matter until noon Jan 20,2021. I heard it’s alleged he was talking to Mark Meadows in one of these two situations. Mark was his WH chief of staff. It’s all murky and muddled. Let’s not forget Trump declassified the Russia Hoax documents in one or more speeches.
was DJT’s statement under oath?
I just finished reading the entire indictment, and I and most everyone else have been operating under a misapprehension. There is no charge for sharing classified information with an unauthorized person. It looks like the transcript of the audio was included as evidence that Trump knew he had possession of classified documents, and that he knew he did not have the power to declassify them. In that transcript, Trump even talks to a staffer about seeing if they could get the document declassified, which led to his statement acknowledging he could not declassify it himself. Seems like that was included in the indictment to establish mens rea (guilty mind), and to demonstrate that classified data was at risk of being exposed by Trump having possession.
What far left PolitiFact is admitting here is that the president can declassify anything he wants, anytime he wants and there is no set procedure he has to follow in order to do so.
So anything President Trump decided to declassify and take with him was declassified because he, as president, had that power.
But what was this classified material? What was the document? They don’t have that. All they have is Trump saying whatever he was holding was classified. He could have been talking out of his hat. They can’t prove that what he had was actually classified because they don’t have whatever document it was he was holding....if indeed he was actually holding a government document and not say, his monthly water bill in an envelope when he was speaking.
Former President Donald Trump has been indicted on federal charges in an investigation into his handling of classified documents, according to an indictment unsealed on Friday.
The indictment comes after more than 100 documents with classified markings were found at Trump’s Mar-a-Lago resort in August 2022.
Trump has been charged with 37 counts: 31 counts of willful retention of national defense information; one count of conspiracy to obstruct justice; one count of withholding a document or record; one count of corruptly concealing a document or record; one count of concealing a document in a federal investigation; one count of scheme to conceal; and one count of false statements and representations.
https://abcnews.go.com/Politics/live-updates/trump-indictment/?id=99913217
...in connection with a then-forthcoming book.
That's all it says about any book. (on Page 15)
Now it's found out that when you commented to me you hadn't read the whole indictment.
Your comment, CA Conservative 6/10/2023, 11:08:36
...books being written about Mark Meadows. That is specified in the indictment.
So, to continue our discussion, what page?
Since there were at least 4 other people in the meeting, I presume they established the existence of the document through testimony from the others. But Trump was not charged with sharing classified information, probably because they didn’t have the actual document. Not having that document does not impact any of the charges listed in the indictment, so if you were hoping that would result in a dismissal of charges, you are setting yourself up for a disappointment.
The then-forthcoming book was about Mark Meadows. The indictment specified the interview was related to a book - other sources identified the book as being about Meadows.
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