The raid on ex-president Trump's residence recently produced evidence of his having Top Secret documents stored there without proper supervision.
Could Trump claim that these are actually declassified documents because he declared them as such before leaving the White House? Would he have to produce any paperwork to prove that this is true?
According to this article from The Atlantic,, yes, he could claim that he declared them declassified and no paperwork would have been necessary. However, LegalEagle, in this video at 12:12, says that documents must be treated according to their classification markings (regardless of the actual classification), in which case there would be "paperwork" (albeit just that he would have to change or have changed the classification markings). But it's not clear that this actually must apply to the president who (with exceptions below) has ultimate authority over classification.
Either way, not all documents can be declassified by the president: certain types of documents, such as those giving the identities of spies or containing nuclear secrets, have their classification and declassification controlled by statute, not by the president. Further, the president's ability to declassify documents ends when he leaves office, and any documents he declassified documents may be reclassified again by those in the government authorised to do so.
The description from The Atlantic:
The 1988 Supreme Court case Navy v. Egan confirmed that classification authority flows from the president except in specific instances separated from his powers by law. And here is where things get theological: A president can make most documents classified or declassified simply by willing them so. This peculiar power is so great that the government has an office that exists solely to manage it: the Information Security Oversight Office...
...J. William Leonard, led the office under George W. Bush, and he confirmed the lack of general limitation of his boss’s power. While a president is president, Leonard told me, “the rules and procedures governing the classification and declassification of information apply to everyone else.” And that means Trump could have declassified whatever he wished (again, with specific limitations soon to be discussed) before carting it off to Mar-a-Lago. He would not have had to file paperwork—just “utter the magic words,” Leonard told me. He could have waved his hand over the U-Haul trailer as it headed out the White House driveway and down I-95 toward Florida, and there would have been no classified material in there to mishandle.
Leonard noted important caveats, however. First, Trump’s power to declassify ended with his presidency. Second, that U-Haul could be reclassified by someone else. (Depending on traffic and the sharpness of the Biden administration, I would imagine it could have been reclassified somewhere around Fredericksburg, Virginia.) And third, there are certain materials that presidents cannot classify and declassify at will. One such category of material is the identity of spies.
Another is nuclear secrets. The Atomic Energy Acts of 1946 and 1954 produced an even stranger category of classified knowledge. Anything related to the production or use of nuclear weapons and nuclear power is inherently classified, and Trump could utter whatever words he pleased yet still be in possession of classified material. Where are our nuclear warheads? What tricks have we developed to make sure they work? This information is “born secret” no matter who produces it. The restrictions on documents of this type are incredibly tight. In the unlikely event that Trump came up with a new way to enrich uranium, and scribbled it on a cocktail napkin poolside at Mar-a-Lago early this year, that napkin would instantly have become a classified document subject to various controls and procedures, and possibly illegal for the former president to possess. Of course if he did so, no prosecutor would pursue him. A certain amount of leeway is crucial to the system.
The description from the LegalEagle video:
We also don't know if trump followed the procedure for declassifying the documents. He can't just think declassification in his head while president and the documents are declassified. The lawyers at Just Security summarize the process for declassification like this: classified documents have classification markings in the header and footer of each page indicating the level classification for the document as a whole. Furthermore classified records have cover sheets that specifically indicate when the record was classified by whom and under what authority as well as when the classification expires. If Trump did in fact order the declassification, he still needed to make sure his staff took the necessary next steps to modify the classification markings on the documents before he could actually handle and store the records as a private citizen [emphasis mine --cjs] as if they were unclassified. Under security classification rules a classification marking on a document has to be treated as valid and binding unless and until a subsequent marking replaces it. Appropriate government staffers would have needed to cross out the classification markings in the headers and footers and stamped "declassified" on the record noting when it was declassified by whom and under what authority.
Since that does not appear to have been done with the classified documents reportedly identified to date, the documents remain classified and had to be treated as classified for handling and storage purposes.
The New York Times article "Presidential Power to Declassify Information, Explained" directly asks whether the president must follow the procedures:
Do presidents have to obey the usual procedures?
There is no Supreme Court precedent definitively answering that question.
...
Proponents of a strong view of presidential power have argued in other contexts that presidents are not personally bound by the rules and procedures that regulate the conduct of their subordinates in the executive branch — and that presidents can even disregard executive orders without first rescinding them. Others disagree with that vision of executive power.
There have been several comments (some with many upvotes) essentially saying that it doesn't make sense or is a bad thing that we have nothing (neither statute law nor a court ruling about executive orders or executive power) clearly stopping a president from declassifying documents without actually having at least one copy re-marked as unclassified. (See, e.g., Trilarion, Lag and Joe W, PoloHoleSet, computercarguy, and Joe W again.) This is certainly not an unreasonable opinion, and "secret" declassifications can clearly cause problems, but that does not change the current state of the law and regulation. Absent a court judgement about a president declassifying documents in this way, it is not possible to say that it can't be done, no matter how terrible an idea you think it is.
Also note that "bad ideas" like this are not uncommon in law. For example, members of the Trump administration appear to have violated various laws that only Trump can enforce, and he chose not to enforce them. Those laws were obviously not well drafted to handle situations like this, but they are what they are.
President Obama issued Executive Order 13526. The document is long, but it lays out the procedures for declassifying information, including all of the mechanisms involved (there's a lot of Federal agencies with fingers in this pie). Ultimately, there is this
Sec. 3.7. National Declassification Center (a) There is established within the National Archives a National Declassification Center to streamline declassification processes, facilitate quality-assurance measures, and implement standardized training regarding the declassification of records determined to have permanent historical value. There shall be a Director of the Center who shall be appointed or removed by the Archivist in consultation with the Secretaries of State, Defense, Energy, and Homeland Security, the Attorney General, and the Director of National Intelligence.
So there is a process for declassifying material. Neither Trump, nor Biden, have rescinded this Executive Order.
In 2018, President Trump talked about a classified skirmish in Syria.
The details of the battle remain classified, but speaking to donors in midtown Manhattan last Wednesday, Trump said he was amazed by the performance of American F-18 pilots. He suggested that the strikes may have been as brief as “10 minutes” and taken out 100 to 300 Russians, according to a person briefed on the president’s remarks, which have not previously been reported.
The New York Times filed a Freedom of Information Act(FOIA) request for details, arguing that Trump's remarks automatically declassified any information. The Second Circuit noted this in their dismissal (page 28)
Declassification cannot occur unless designated officials follow specified procedures.
This is the footnote on that
As explained above, Executive order 13,526 established the detailed process through which secret information can be appropriately declassified
So, no, Trump cannot simply "will" the documents to be declassified (as now established by a court ruling). They must be brought through the proper process.
Maybe not in some cases, if we consider precedent.
Nearly 20 years ago, Justice Department prosecutors wrestled with the vexing question of whether President George W. Bush and Vice President Dick Cheney could unilaterally authorize Cheney’s chief of staff Scooter Libby to leak to select journalists the key findings of a then-highly-classified intelligence community-wide report on Iraq’s efforts to acquire weapons of mass destruction.
Libby’s claim of the direct but unrecorded disclosure order from Bush and Cheney may have contributed to a decision by Special Counsel Patrick Fitzgerald not to charge Libby with releasing classified information to New York Times reporter Judith Miller and others.
(Libby was still prosecuted for other counts.)
Of course many dubious things were done under that presidency, including torturing people while calling it some euphemism, and starting a war based on some WMD claims now seen as false, so that may or may not be the best of precedents to consider.
And while there are some examples of (previously classified) information directly released to the public via the mass media by presidents (Trump released a missile photo, Obama ack'd a drone program), broad declassification by such informal means (like Trump claims here for everything stored at Mar-a-Lago) was resisted from within the administration itself e.g.
Chief of staff Mark Meadows [...] told a court that a tweet by Trump in October 2020 describing the declassification of large swaths of Russia-related documents was not intended to be a “self-executing” declassification order.
Generally speaking, absent paper trail, there's the practical difficulty of proving something still marked as classified on the document itself was actuarially declassified when that was possible.
Kash Patel, a Pentagon chief of staff during the Trump administration, told Breitbart News in May that the documents previously recovered from Mar-a-Lago had been declassified by Trump, but their markings were not updated. [...]
In the current dispute, the apparent lack of a paper trail showing that Trump declassified the documents before he left office could be a problem for the former president, said Stephen Vladeck, a University of Texas School of Law professor who specializes in national security.
“President Trump had the power to declassify whichever documents he wanted to while he was president, but not any longer. So I’m not sure it’s at all obvious that he could now claim that he declassified documents while he was still in office if there’s no evidence to support it,” Vladeck said.
And the turnaround in the Russia papers, detailed:
In October 2020, Trump tweeted, “I have fully authorized the total Declassification of any & all documents pertaining to the single greatest political CRIME in American History, the Russia Hoax. Likewise, the Hillary Clinton Email Scandal. No redactions!”
When news organizations sought to obtain the supposedly declassified documents, they were told they were still under wraps. Trump chief of staff Mark Meadows said in a sworn court filing in the case, “The president indicated to me that his statements on Twitter were not self-executing declassification orders and do not require the declassification or release of any particular documents.”
As this Q is prompted by the Trump-FBI affair, only one of the three laws invoked by the FBI was about (national defense) secrets, and even that one is so old (1917) that it predates the modern classification system used by the executive (and doesn't mention it), leading to this other question whether the [executive] classification is nowadays seen as the ultimate test by the DOJ & judiciary, in such matters.
I think people have generally understood the question to be about the legal authority of the office but I think there are interesting implications of not communicating or recording a declassification decision.
From a practical administration perspective:
"procedures should have been in place to notify the official who originally classified that information who in turn would have to have notified the potentially millions of individuals who derivatively classified or otherwise had copies of that same classified information.
"[Without such procedures] the original classifier and the myriad of authorized users of that information would remain oblivious to the fact that the information contained therein would no longer have the legal protections of the classification system." - J. William Leonard, former Director of the Information Security Oversight Office (ISOO), 30 years experience in that world
Of course there are hitherto unauthorised users who would like to be aware of the material's status as well, e.g. journalists and academics.
In terms of the president's legal authority while in office, apparently he doesn't have to communicate his decision.
In terms of what may happen with legal proceedings if, after he left office, the authorities were to search his property and find what looks like classified material (drawing from current events):
he claims he declassified it while in office
but there is no evidence he followed the well-established declassification procedures with respect to this material (there is evidence he followed the procedures with respect to other material)
there is no evidence of any change or exception to those procedures
there is no evidence of a relevant declassification decision, memorandum, executive order, policy or "standing order" (that "documents removed from the Oval Office and taken to the residence were deemed to be declassified the moment he removed them")
there is evidence the material recovered from his property is classified - the labels on documents and boxes that says "classified/TS/SCI", any extant 'paperwork', copies of the material held elsewhere, digital records stored by the government to that effect
earlier in the year, after a previous visit from the FBI, his attorney signed a statement that said something to the effect of "we have now returned all the classified material" (implying there was classified material to be returned, and a false statement to the FBI if some remained at the property)
the current government may say "this material is in fact classified" and have evidence (copies, paperwork etc) that it is
It's his word vs. a lot of evidence to the contrary.
So yes, the president may have the legal authority while in office to declassify material without filing paperwork but if there's no evidence of his decision there are contemporaneous practical and legal problems and, if he took the material home, there are post-office legal risks.
Any POTUS has broad executive powers which originate under Article II. Further he can create and cancel(override) any EO he pleases. Of course Congress can make laws which subvert EO's and they can be challenged all the way to SCOTUS. Further there is precedent for a POTUS to ignore EO's considering he has the power to create and over-ride them. That can't be just discounted on a whim.
The whole classification system applies to everyone else not a POTUS. The attempt to start citing classification rules certainly applies to a Senator like Biden was when he absconded with classified materials from a SCIF or SCIF's. But in no way can anyone claim that a POTUS doesn't have declassification power nor claim that he didn't declassify documents "officially". What's "official" for a POTUS is simply stating a document is declassified and there's evidence Trump did that too.
Claiming Nuclear secrets were at stake is difficult to prove. It also falls under a POTUS's authority since he alone has the power to authorize Nuclear strikes. Again the power to declassify and/or override or ignore a classification EO, even Obama's.
Proving that Trump didn't declassify anything and/or didn't do it "officially" means that he has to abide by a classification system everyone else does. There is no precedent for that claim.
Ultimately SCOTUS will decide as to the extent of a POTUS's executive authority, not the FBI, not the DOJ, not the WH, not the media, not so-called experts or any citizen, just SCOTUS.
