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.
Go back and reread the linked article and see that it is the position of the article (with citations), I'm just articulating it.
From the end of the article:
Our rulingHowever...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...
"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...
So there are two sides of the coin being discussed. One is declassifying a document; the other is keeping the document classified but giving someone clearance to see it. The article suggests that President Trump did both.
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.
First, we have to clarify the terms of the scenario. Is the President mid-term in office? The current Trump situation is that he says he declassified the documents on the way out and took them. Your hypothetical scenario seems to imply a case where he declassified with time to go in his term. I'd question that scenario by asking whether President Trump would notify at least his Chief of Staff that he is declassifying the document if he still had months or years remaining on his term. Do you know of other documents that remained in the archives that President Trump claims to have declassified but appear to remain classified that would suggest this as a viable what-if?
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.
Same as above. The basic question is what is the underlying reason for declassifying something? Most people (including President Trump, IMHO), take secrets seriously and don't just declassify casually like they're getting a can of soda from the fridge. There has to be a purpose.
I think President Trump truly felt humbled and honored to have been elected President because he loved the country so much and hated what he was seeing happening to it by the elite ruling class. I think he took his powers of office seriously and wouldn't willy-nilly and haphazardly declassify documents. On those terms I would dismiss hypotheticals based on those assumptions.
I do think that President Trump was surprised at how much of DC turned on him simply for winning. I think he was surprised by the lack of support that he got from his own party leaders. I think he was surprised by the back-stabbing he got from his own appointed staff members. I wouldn't be surprised if he amassed some evidence of people conspiring to undermine him in one way or another. I wouldn't be surprised of some of these documents were classified as "related to national defense" or "national security," but those are just dog whistles for "threats to Democrat party rule.
-PJ
First, the scenarios I proposed were not Trump specific, which is why I said “president” and “ex-president”. I wanted to address the general principle rather than the individual.
Second, most of what the article is discussing the classification authority in relation to a sitting president. It tries to extend that to a president leaving office, but I don’t find it persuasive. And honestly, I hope that position is never accepted as correct.
Let me explain why with another scenario. Let’s assume Trump used this as a defense and was able to get an expedited hearing by SCOTUS, and just prior to the election, SCOTUS agrees - any classified information the departing president takes with him is automatically declassified. Trump wins the election! On January 20th, Joe Biden packs up truckloads of sensitive confidential data that China, Ukraine and other countries would love to get their hands on. On January 21st, he sets up shop selling the information to the highest bidder - and there is not a thing anyone can do, because according to the premise you proposed, everything he takes is declassified and belongs to him. He even gives a big chunk to Hunter to set up his own shop selling the data - since the data is declassified, there can be no prohibition on him doing so.
Do you see the problem?
Can you please clarify:
A President leaving office or a President who has left office?
I agree with you that once out of office, a President does not have the power to declassify documents. Is that what is being alleged about President Trump? I don't think so.
As to a President who is leaving office, he retains his powers until 11:59:59 on January 20. Are you saying that you don't accept the position that a President can declassify documents up to that moment?
Regarding your scenario, declassified yes, "belongs to him," no. For your scenario to happen, American would have had to elect a scoundrel, meaning that the entire campaign and election process, plus a term or two of Congressional oversight, has failed to discover the true nature of such a scoundrel. Besides, your scenario is treason, whether in or out of office and would be treated as such.
-PJ
“ As to a President who is leaving office, he retains his powers until 11:59:59 on January 20. Are you saying that you don’t accept the position that a President can declassify documents up to that moment?”
I agree that he retains that ability until the moment he leaves office. I don’t agree that the mere fact of him leaving office with classified documents renders them declassified.
“ Besides, your scenario is treason, whether in or out of office and would be treated as such.”
My scenario is only treason if he sells to an enemy. Legally, a country is only an enemy if we are in a state of war with them. We are not in a state of war with China or Russia. I don’t even think we are in a state of war with Iran. So what could they be charged with? The information is no longer classified, so they can’t be charged with revealing state secrets.
And you don’t think Biden and his family are scoundrels?
Also, if you agree that the documents don’t belong to the former president, then they belong to the government. Refusal to return them could be considered theft of government property, right?
I believe the Presidential Records Act separates "Presidential records" from "government records."
I read somewhere (today) that a President has permanent access to their own presidential records, and can designate anyone as a representative to handle them, too.
So the question comes down to whether the documents in question were presidential records. I think President Trump says they were, the DoJ says they're not.
-PJ
The entire case is a politically driven farce. If you are getting your hopes up of a conviction, you are setting yourself up for disappointment.
The same goes for any hopes this would damage Trump politically.
Actually, the PRA separates Presidential records from personal records. Presidential records under the PRA ARE government records. The former president and/or a designated representative have access to them, but they belong to the government.
I agree that the case is politically driven. But people have been making claims that are inaccurate or at least very questionable about the law and Constitution and seem to be setting themselves up for disappointment when rulings don’t go their way.
Ultimately I think the court will find that he PRA controls the issue of presidential records and the espionage charges will get tossed. It’s the process crimes where I think Trump may have more exposure - hiding documents from a subpoena, falsely certifying that all documents had been turned over, having boxes removed so they could not be searched for documents responsive to the subpoena, etc. Even if the PRA is the controlling authority, once the subpoena was issued and upheld, attempting to circumvent or avoid compliance is its own crime, though usually contempt of court. There are defenses Trump can raise - since disputes under the PRA are a civil matter, should failure to comply with the subpoena be obstruction or contempt? Unfortunately, it may take getting to an appeals court to win that argument, which means Trump could get convicted before any ultimate vindication.
Since the Archive was never entitled to those documents, there is no charge for obstruction. What would it be - obstructing them from getting something they never had a right to in the first place?
That’s on top of them running to a favorable DC court to get an indictment before then going to the Florida court where everything took place. They were rightly worried they’d never get an indictment if they went to the correct Florida court to begin with.
On top of the rest, their entire case is based on attorney client privileged information that should be tossed out on first amendment grounds.
The only precedent in this is the Clinton Sock Drawer case in which the judge ruled for Clinton and said the President could take any documents he wanted to.
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