The topic today should be: just how easy is it for a president to declassify documents?

[Baitball Blogger]

It would go a long way to shut up Trump's supporters if we could show that there is a process that should have been followed to protect the most sensitive data, and Trump did not follow it. He never had respect or discipline to follow protocol, and that's going to bring him down. He was always a sloven leader whose only real gift was to make a beeline for fast, corrupt money and avoiding the consequences.

His luck may have run out.

And, while we're on the subject, if it's easy to declassify documents, can Biden declassify the Mueller Report?

[FBaggins]

1. Very easy

There most certainly is a process, but it’s largely based on an executive order. And executive orders are basically presidential declarations.

But we should note that it’s unlikely that the classification matters much beyond getting the FBI permission to search.

[Baitball Blogger]

2. Executive Orders do require paperwork, don't they?

There has to be a paper trail, even for Executive Orders.

[DetroitLegalBeagle]

15. There are, but it doesn't require an executive order to declassify something

The Presidents power to classify and declassify is through an already existing Executive Order. The most recent on dates to Pres Obama in 2009. The original EO dealing with classified information dates back to Truman. Subsequent Presidents have modified it with their own EO's. Because the power to classify and declassify material comes through via an Executive Order and through their position as head of the Executive branch and Commander in Chief, the President can essentially wave their hand and classify and declassify things at will, with exception to items that are classified by statute such as nuclear energy and weapons related materials.

[Igel]

20. And here it is.

https://www.archives.gov/isoo/policy-documents/cnsi-eo.html

I think that's the last EO establishing the mechanisms for classifying and declassifying--and they almost entirely apply just to agencies. Agencies have developed more detailed procedures for securing, making available, showing that a document is to be declassified, so this isn't the entirety of the procedures by any means, but the basis for extensions and elaborations (and even then, this fairly detailed, and appropriately so).

The original authority or anybody above another original authority can declassify. The procedures above the executive agencies aren't spelled out. But I can't imagine Biden, talking to another president, saying, "I can't discuss what we know about Russian activities in France--assuming know anything. That's classified, I'll get back to you after I get permission from my superior, the section chief who three levels down from that agency head."

The EO makes the appropriate exceptions down in the definitions and general provisions.

[gab13by13]

3. SIGINT documents cannot be unilaterally declassified by the president,

Also, it doesn't matter if the documents were classified or not, the documents belong to the federal government not to Donald Trump.

[marybourg]

4. This is important.

[Baitball Blogger]

5. +1

Hopefully the talking heads will air this kind of information to help our side gain some traction against the nutcases.

[niyad]

18. Don't hold your breath.

[FBaggins]

6. Sure they can

Otherwise Biden would be committing a crime if he discussed them with an ally. He absolutely should get expert counsel re: whether or not it’s advisable, but the buck doesn’t stop with someone else.

What too many forget is that there’s a reason why it’s so important who we elect as POTUS. They become “the most powerful person in the world” and “have their finger on the button”.

[DetroitLegalBeagle]

17. Yes they can

All material can be declassified at will by the President. The exception to this is nuclear weapon and energy related materials because those are classified via statute through the Atomic Energy Acts.

[Walleye]

7. Is the president the only one with authority to declassify. For example could the Secretary of State

[FBaggins]

9. Lots of people are delegated the authority to declassify classified material

But that word "delegated" is key. Directly or indirectly, that authority comes from the president.

[Walleye]

10. So I'm thinking, could Hillary have just declassified things as Secretary of State?

[FBaggins]

13. Certainly for things classified under her authority

Or that of a previous secretary.

[Walleye]

16. I'm thinking this whole issue is a complete Red Herring

[kentuck]

8. As easy as it is for Oprah to say "You get a car!"...

There is a process for a reason. There are more than just one copy of a document. They may be on a computer or in a file somewhere else, but those copies would also have to be declassified. Otherwise, the left hand would not know what the right hand is doing. A simple wave of a wand does not declassify a document. There has to be a record of the event.

[Walleye]

11. Plus. Are we supposed to just take his word for it? a pathological liar

[Cracklin Charlie]

12. The classification does not matter.

The documents were not his to take. He stole US Government property.

[Fiendish Thingy]

14. The declassification question is an irrelevant distraction.

Violating 18 USC 793 (Espionage Act) only requires possession of documents containing National Defense Information, regardless of classification status.

[FBaggins]

23. I largely agree with you, but it is a bit more complicated

The courts widely agree that NDI and "classified" are not the same thing (though clearly, they overlap a bunch). Something can be NDI without having been classified, and vice-versa.

But it's still an open question whether or not it's possible for documents to count as NDI for purposes of the espionage act if they were once classified but were later declassified. And we've never dealt with the potential argument that the commander in chief if the utmost authority on what is and what isn't NDI. I suspect we agree on what the right answer is, but getting that through the current courts and then convincing a dozen jurors to arrive at that conclusion unanimously?

I suspect that these statutes were cited primary to get the search warrant approved. The real story is probably related to 1/6 or something we haven't heard about yet.

[Fiendish Thingy]

25. Reading the analysis on Emptywheel, the opinion is...

That the jury makes the final decision on what counts as NDI, for the purposes of determining information that

could be used to the injury of the United States or to the advantage of any foreign nation,

(From the text of 18 USC 793(e) )

I don’t think the CIC argument would hold up in court.

[onenote]

19. The Mueller Report isn't "classified".

However, parts of it were redacted and those redactions have been reviewed and, for the most part, upheld on judicial review, as consistent with certain FOIA- exemptions from public disclosure. For example, while some portions of the report that were initially redacted have bee unreacted, either by DOJ on its own or pursuant too court order, other portions remain redacted. These include redactions made (and upheld by the courts) accordance with statutory provisions barring release of Grand Jury information, or in accordance with provisions of the the National Security Act, or redacted under a FOIA provision relating to the protection of privacy interests.

President Biden cannot unilaterally waive the statutory provisions protecting grand jury information. Whether or not the he could waive the National Security Act provisions there is absolutely no reason to think he would do that after the courts have concluded those materials were properly withheld. Similarly, even if he can somehow unilaterally override other FOIA exceptions, such as those related to the protection of privacy interests, there is no reason to think he would do that.

See:https://www.courthousenews.com/wp-content/uploads/2021/11/buzzfeed-doj-mueller-redactions.pdf

[Chainfire]

21. Since we had no prior knowledge of him "declassifying" the documents that were found in his home,

Do we know that he didn't wave his magic wand over all US secrets? It is very convenient to suggest that you have the power to declassify documents and no one knows if for two years.

Trump's entire defense is hogwash, it is time for him to answer the questions in court, under oath.


Lock Him Up! It is past time! The test to this proposition is simple, "What would have happened to any other citizen in the US if they got caught with classified documents in their possession? It is time to quit treating a criminal and traitor with kid gloves.

[Baitball Blogger]

22. It's weird all around. It's obvious he didn't want anyone to know what he took from the White House

because he didn't release the information on the first FBI request. And now he's dropping ten and punting.

We can't let him get away with it.

[blogslug]

24. They're not his documents

It doesn't matter if they're classified or declassified. They don't belong to him.