Steve Vladeck: If Trump did 'declassify' records (he didn't), it would be no less damning

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Steve Vladeck
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Today’s print @washingtonpost includes my @PostOutlook essay on President Trump’s “I declassified them” defense — and why, although it’s both factually ridiculous and legally immaterial, what’s even more disturbing is what it would mean if it were *true*:

https://wapo.st/3ejBmu4
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4:42 AM · Sep 4, 2022

https://www.washingtonpost.com/outlook/2022/09/02/declassified-mar-a-lago-national-security/

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https://archive.ph/uSA00

There are so many holes in former president Donald Trump’s claim that he declassified the documents confiscated by the FBI during its Aug. 8 search of Mar-a-Lago that it’s hard to keep track. The latest came Wednesday night, when Trump’s own lawyers agreed with the Justice Department that if a special master were appointed to review the seized materials, that person should have a top secret/SCI security clearance: If Trump’s declassification claim were correct, why the need for a special master to have that clearance? Equally significant is that none of the three federal crimes that formed the basis for the search — Espionage Act violations, mishandling of government records and obstruction of justice — turn on the documents’ classification status. So the declassification issue is the reddest of red herrings: It’s as factually implausible as it is legally irrelevant.

But there’s one more problem with Trump’s argument that these rebuttals don’t fully capture. Even if it were accurate and relevant, it would be no less damning as an indictment of the former president.

Although the concept of national security secrets goes back to the nation’s founding, the formal legal rules for “classification” date only to the aftermath of World War II. This is partly why the Espionage Act, enacted in 1917, refers to the broader and more amorphous category of “information relating to the national defense.” The modern classification system was created in a September 1951 executive order signed by President Harry Truman. In that order, and in the numerous amendments that have followed, the core principle has always been the same: The purposes of national security classification are “to protect the national security of the United States” and “to establish a system for the safeguarding of official information the unauthorized disclosure of which would or could harm, tend to impair, or otherwise threaten the security of the nation.” The most recent classification order, signed by President Barack Obama in 2009, endorses a similar view: “Throughout our history, the national defense has required that certain information be maintained in confidence in order to protect our citizens, our democratic institutions, our homeland security, and our interactions with foreign nations.”

In other words, national security classification does not just have bureaucratic utility; it reflects the concern that allowing certain information into the public domain could pose grave risks to the safety and security of Americans and our allies. Yes, there are long-running and entirely justified concerns about over-classification — and about the public’s difficulties in accessing information that should be available. But no one seriously disputes that the government needs to keep at least some information properly classified, and that declassification should be based at least in part on an assessment of the risks (or lack thereof) of publicizing the material.

*snip*