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.