Myths & Misunderstandings Relating to Mar-a-Lago Documents Investigation (Just Security)

[Nevilledog]

Link to tweet

https://www.justsecurity.org/82706/myths-misunderstandings-relating-to-mar-a-lago-documents-investigation/

In the days since former President Donald Trump announced on his social media platform that the Federal Bureau of Investigation (FBI) had executed a search warrant at his home and business at Mar-a-Lago, there has been much discussion as to what authorities Trump has or had as a former president and what laws or regulations he may have violated by possessing documents with classification markings outside of proper controls. This has led to the repeating of many myths and misunderstandings, often by the former president himself, as to presidential authority relating to classified information.

I spent over 30 years overseeing the proper handling of such information, initially in the Department of Defense and ending my government service responsible for the oversight of classified information within the entire executive branch as Director of the Information Security Oversight Office (ISOO).

What follows is my attempt to address some of the more common myths and misunderstandings regarding a president and classified information that have recently circulated.

Myth #1: As former president Nixon once said, “When the president does it that means that it is not illegal.”

True that Nixon said it, but the idea is false. Our nation is founded on a fundamental rule of law principle that the United States has a government of law, not men. In the Federalist Papers, James Madison wrote: “If men were angels, no government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” It is in recognition of this aspect of human nature that our founders embraced the concept known as the separation of powers, intended to ensure that no one person can gain absolute power and stand above the law.

Myth #2: As long as information has been declassified by competent authority or is otherwise unclassified, former government officials (to include a former president) are free to possess and/or disclose the information at will.

False. Much of the unclassified information created by the federal government’s executive branch or otherwise in its custody is nonetheless sensitive and requires safeguarding or dissemination controls pursuant to and consistent with applicable law, regulations, and government-wide policies. Known as Controlled Unclassified Information, examples include information relating to federal taxpayers, witness protection, critical infrastructure protection and nuclear security. Both current and former government officials are subject to administrative or criminal sanctions should they improperly disclose or otherwise mishandle such unclassified information. Moreover, the unauthorized possession of certain controlled unclassified information such as Naval Nuclear Propulsion Information could be subject to prosecution under, among other statutes, 18 USC 793 of the Espionage Act, which does not mention classified information but rather applies to closely held national defense information the disclosure of which, if publicly known, could be used to the injury of the United States or to the advantage of any foreign nation.

*snip*