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.
...other sources identified the book as being about Meadows. vs That is specified in the indictment.
No, just clarifying. Not sure your point here. Regardless, your reliance on CNN was out of date, as the indictment clearly stated the audio was related to an interview for a book, and that Trump knew and consented to being recorded.
Not sure your point here.
Why am I not surprised.
When you go back and look at it as a whole, might you consider that I was leaving the backstory/breadcrumbs and had not gotten to the end of it? I'm prone to do that.
Post something, get up the next piece, post that, get up the next...you know.
Did I STOP at the CNN articles or did I proceed as if that was the end of the story?
NO! I wanted to know what you had found and I even asked you which page of the indictment covered your statement. I wanted to learn more.
I get "I was clarifing" as a response. Shouldn't you have clarified things before posting your original comment?
Are you trying to play the victim by blaming me???
Ignominy lasts and you bring heaps of it upon yourself.
It's comments like this that have me scratching my head.
It supposes that there is some ritual hand-waving that signifies an overt act of declassifying, that if not done before sharing a secret means that the secret was not declassified before being shared by the President.
That is nonsensical thinking. The sharing itself is the act of either declassifying or granting the classified status to the receiver of the information, if you're the President.
That's what it means to be a plenary power.
-PJ
Oh, that’s why you asked what page. I thought you were asking what page of the indictment I read. Confused me. The information about the meeting and the transcript is on pages 15-16.
Any information about the book being about Meadows isn't on pages 15-16!
THAT is what this conversation is about, lest you forget.
If it's elsewhere, please share the Page where it is...specified in the indictment...in your words.
OH, you can''t. It's not in the indictment, it's from other sources.
Catch-22 for you.
You post this trying to give the impression that I don't know what I'm talking about simply because it's a different thread?
Do you deny that the book mentioned in the indictment was about Meadows? The book was mentioned in the indictment - I happened to know from other research that the book was about Meadows and included that information. Still not sure what you are trying to prove. My point was valid, and you don’t seem to even be trying to dispute that. Perhaps I should have put the information about Meadows in parentheses for clarity, but that doesn’t negate the point I made. This isn’t the own you think it is…
Nothing about the book being about Meadows on Page 15.
No book, it appears, is specified, despite your claim.
I have no evidence whether it is or isn't about Meadows. How am I to say either way? That's what YOU are supposed to be helping with and all I've gotten from you is lies and subterfuge.
The book was mentioned in the indictment...
NO!!! A book was mentioned, and neither the title nor subject is stated. If it is what page?
...and included that information.
Where? Which specific reply?
My point was valid...
Your POINT was that the book was about Meadows and the indictment stated that it was specifically ("specified") in there, which has now been shown to be a lie.
"IN" the indictment you said. It's NOT on Page 15.
This is a waste of time. You are straining at a gnat and swallowing a camel. You posted information to me questioning where the tape came from, and stating CNN hadn’t heard the tape, and that all they had were “typed words”. I responded to you that the information was included in the indictment and that the CNN article you referenced was out of date. That was the substance of my “claim”, and it is undisputed. If you still want to kvetch over the fact that I specified what the book was about when the indictment didn’t, feel free. It doesn’t change anything and I don’t have time to waste on this anymore. I am always happy to discuss and even argue about issues, but have no patience for someone just wanting to score gotcha points on irrelevant details. If that makes you feel like you’ve won something, good for you - you obviously need something to make you feel better about yourself.
Isn't that all they had?
If you still want to kvetch over the fact that I specified what the book was about when the indictment didn’t, feel free.
You didn't specify what the book was about, you said that a specific book was called out in the indictment when it appears it isn't. That's on you.
You spinning it isn't going to change that.
If that makes you feel like you’ve won something, good for you ...
I wasn't trying to "win" anything. I'm trying to get the truth. It isn't in you, apparently.
Well, you did say it was about Meadows so I was wrong above.
My apologies.
No subject, no mention of Meadows, no mention of the writer's intent or subject, but you KNOW it was about Meadows yet you offer NOTHING to substantiate your claims, even from your purported "other sources".
Ignominy.
You said: 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.
To me, it seems that this article is saying that the act of taking it as President was sufficient to consider it declassified from that point forward.
The question then becomes does the government have the right to ask for it back? If the answer is yes but the former President declines to return it claiming past precedent, is that criminal? I think many people believe it is not criminal (the Presidential Records Act has no criminal charges attached to it), but that it is being levied arbitrarily against President Trump for political reasons.
You said: 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...
As I said up-thread:
I'm arguing that if the President uses his plenary powers to declassify something "on the spot," then how would there be a record of it unless this was done post hoc?
It supposes that there is some ritual hand-waving that signifies an overt act of declassifying, that if not done before sharing a secret means that the secret was not declassified before being shared by the President.That is nonsensical thinking. The sharing itself is the act of either declassifying or granting the classified status to the receiver of the information, if you're the President.
That's what it means to be a plenary power.
If the President did this on his last day in office and then took the documents with him, then how would there be a record of it?
Constitutionally, processes for declassification are for lower-level staffers who are delegated the classification powers from the President. The Supremacy clause in the Constitution says that there is no "process" that binds the President on the matter of declassification.
Where it gets murky is when the "process" goes after a President once he leaves office. At that point, he no longer has plenary powers, but it seems to me that the process is being applied ex post facto to President Trump to make criminal what was not criminal when the act occurred. What are your thoughts on this?
-PJ
“ To me, it seems that this article is saying that the act of taking it as President was sufficient to consider it declassified from that point forward.”
I have heard some other people advance this idea, but no one has provided any reference to a law or regulation that provides for this. I read through the PRA and didn’t see anything about it. Perhaps there is a court case that specifies it. If so, I’d love to read it.
“ The question then becomes does the government have the right to ask for it back? If the answer is yes but the former President declines to return it claiming past precedent, is that criminal? I think many people believe it is not criminal (the Presidential Records Act has no criminal charges attached to it), but that it is being levied arbitrarily against President Trump for political reasons.”
If they are personal records, the government does not have a right to ask for them back, but under the PRA, if they are presidential records, the government can ask for them back whether they are classified or not. If there is a dispute between NARA and the former president, it is supposed to be negotiated. No criminal penalties apply. I would agree that trying to use the Espionage Act is completely political and likely to get tossed, hopefully at the preliminary stage of the process.
“ That is nonsensical thinking. The sharing itself is the act of either declassifying or granting the classified status to the receiver of the information, if you’re the President.”
That is true if you are the President, but at the time of the audio recording, Trump wasn’t president, so this would not apply.
“ I’m arguing that if the President uses his plenary powers to declassify something “on the spot,” then how would there be a record of it unless this was done post hoc?”
If the President declassified something without following any procedure, and the question of classification came up while he was still president, all he would have to do is say, “that has been declassified “, and that would be that. Once he is no longer president, if nothing had ever been recorded and the classification were questioned, I don’t think just saying “that has been declassified” would be sufficient. A court might disagree with me.
“ Where it gets murky is when the “process” goes after a President once he leaves office. At that point, he no longer has plenary powers, but it seems to me that the process is being applied ex post facto to President Trump to make criminal what was not criminal when the act occurred. What are your thoughts on this?”
It seems to me from the transcript of the audio that Trump did not believe the classified documents in his possession had been automatically declassified. Besides describing them as “highly confidential” and “secret information”, he also had a discussion about trying to get them declassified. This is what led up to him making the statement that as president he could have declassified them but he no longer could. So I don’t think referring to it as ex post facto - which generally refers to passing a law that criminalizes behavior that took place before the law was passed. That’s not to say they aren’t engaging in selective persecution of Trump, just that the laws they are using, while rarely prosecuted in cases like this, already were on the books.
No law or regulation can bind a President's plenary power. The Supremacy clause of the Constitution says this. Also, everyone is in agreement that the President's power to (de)classify comes from being Commander-in-Chief. The laws and regulations are for the lesser offices and aides to the President whose powers are delegated from the President.
That is true if you are the President, but at the time of the audio recording, Trump wasn’t president, so this would not apply...
I will respond to this further down.
If the President declassified something without following any procedure, and the question of classification came up while he was still president, all he would have to do is say, “that has been declassified “, and that would be that.
The point of this article is that the President is not responsible to anyone else to "okay" his actions. If he shares it with someone, it's in his power to do so. If he shares it with someone who doesn't have the clearance for it, he has by his actions given that person the clearance right then and there.
Once he is no longer president, if nothing had ever been recorded and the classification were questioned, I don’t think just saying “that has been declassified” would be sufficient. A court might disagree with me.
Once he is no longer President, if he had removed the documents as President (as his last act of packing his office for removal), then the documents are automatically deemed to be declassified and he can share them as he wishes.
It seems to me from the transcript of the audio that Trump did not believe the classified documents in his possession had been automatically declassified.
It may be true that President Trump did not believe (or more likely did not understand) that the documents had been declassified by his actions. It doesn't matter if he was mistaken in his belief, the documents were declassified via his prior actions.
Besides describing them as “highly confidential” and “secret information”, he also had a discussion about trying to get them declassified.
Without knowing the actual document in question, I've seen it hypothesized that Trump was showing a document that was classified because it was politically damaging to Democrats. We know that the government over-classifies things to cover up their bad or partisan acts from discovery, so it's possible that Trump was showing one of these documents from the perspective of "can you believe this is classified? I should have declassified this," without considering that he ipso facto declassified them by taking them.
I don’t think referring to it as ex post facto - which generally refers to passing a law that criminalizes behavior that took place before the law was passed.
I use the term "ex post facto" to describe making something that's not criminal to become criminal after the fact. They are interpreting the law to make what President Trump did to be illegal when it was not. And it's not a case of applying a law improperly, it's a case of the law not applying to the President's plenary powers, but trying to charge him anyway.
-PJ
“ No law or regulation can bind a President’s plenary power.”
I agree that the President has plenary power; however we are talking about what happens when he is no longer President.
“ The point of this article is that the President is not responsible to anyone else to “okay” his actions. If he shares it with someone, it’s in his power to do so. If he shares it with someone who doesn’t have the clearance for it, he has by his actions given that person the clearance right then and there.”
Agreed, but let’s postulate a scenario here. The President decides to declassify a document, but never makes a record of that decision or informs anyone. Subsequently, a subordinate is charged for sharing that document because no one knows it was declassified. In that case, the president could just say “ I declassified that document on this date” and that would be that. No further questions necessary. It’s not an issue of questioning whether the president had the right to declassify, but determining if he declassified the document.
Now change the scenario a bit. The president declassified a document but never documented it nor informed anyone. All copies of the document still are marked as classified. The president leaves office, and months later one of his aides shares the document and is arrested for sharing classified data. The ex-president then says, “oh, I actually declassified that last year.” Without some way of verifying that, I doubt that would be accepted at face value.
The key point here is that even though the president can declassify anything without any process or record, to do so would be stupid in the extreme. It leaves open too many possibilities for bad outcomes.
“ Once he is no longer President, if he had removed the documents as President (as his last act of packing his office for removal), then the documents are automatically deemed to be declassified and he can share them as he wishes.”
I understand that is your position, but I don’t know of any law, regulation or court case to support that position. If Trump wants to use that as a defense, he is probably going have to hope that SCOTUS agrees with him when his appeal gets there.
I understand the point you are trying to make, but I think Trump will have a hard time making that case, and it will take years and probably a Supreme Court case to to prevail.
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