“ 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