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FactCheck: Trump's dubious 'standing order' to declassify documents
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FactCheck: Trump's dubious 'standing order' to declassify documents

  • The Supreme Court has not weighed in on whether Trump could unilaterally ignore past executive orders on declassification procedures.
    Gino Crescoli/PixabayThe Supreme Court has not weighed in on whether Trump could unilaterally ignore past executive orders on declassification procedures.

After the FBI searched his Mar-a-Lago home and retrieved boxes of documents — some of them labeled “top secret” — former President Donald Trump released a statement claiming that as president, he had a “standing order … that documents removed from the Oval Office and taken to the residence were deemed to be declassified the moment he removed them.”

Numerous experts on national security and the law surrounding classified documents say that isn’t plausible. And in any case, whether some of the documents are classified — as many of them were marked — may be irrelevant to the criminal investigation, since none of the three criminal laws cited as the predicate for the search warrant require documents to be classified for a violation to occur.

Nonetheless, the fact that Trump may have been holding classified documents has raised the stakes of the investigation. And it has also raised questions about the scope of Trump’s declassification powers.

“I have been engaged in declassification issues since the 1970s, and I can attest that there is no precedent for such a standing order,” Richard Immerman, an assistant deputy director of national intelligence in the George W. Bush administration, told us via email. “Further, had he issued a standing order, it surely would have been ‘leaked’ by someone and then challenged.”

“The procedure is far more formal,” said Immerman, who is now a historian at Temple University. “Documents must be declassified page by page; in fact, if TS/SCI [Top Secret/Sensitive Compartmented Information] line by line. The document then is marked declassified (often sanitized) by the authorizing agent along with the date. Consequently, former President Trump’s claim is to me implausible.”

The legal authority for classifying national security information rests in the president’s power afforded as commander-in-chief and is guided by a series of presidential executive orders, beginning with one issued by President Franklin Roosevelt in 1940. The latest of such orders, Executive Order 13526, issued in late 2009 by then-President Barack Obama, lays out in detail the procedures to declassify information, and the various officials who are to be included in such decisions. Still, the president retains the ultimate authority to declassify a document.

In an appearance on Fox News on Aug. 12, conservative writer John Solomon, who is one of Trump’s representatives for interacting with the National Archives and Records Administration, read a statement from Trump’s office in which the former president argued that he had a “standing order” to declassify all documents taken to Mar-a-Lago, and that he didn’t need anyone or anything else to do that.

“As we can all relate to, everyone ends up having to bring home their work from time to time,” Solomon read. “American presidents are no different. President Trump, in order to prepare the work for the next day, often took documents, including classified documents, to the residence. He had a standing order … that documents removed from the Oval Office and taken to the residence were deemed to be declassified the moment he removed them.”

“The power to classify and declassify documents rests solely with the president of the United States,” the statement continued. “The idea that some paper-pushing bureaucrat with classification authority delegated by the president, needs to approve the declassification is absurd.”

Trump, who has referred to the search as a “break-in” and a “witch hunt,” defended himself on his social media platform, Truth Social. He said the documents were “all declassified” and held in “secured storage” at Mar-a-Lago.

Bolton: ‘Almost certainly a lie’

Trump’s former national security adviser, John R. Bolton, told the New York Times he never heard of Trump’s alleged standing order and that it is “almost certainly a lie.”

“I was never briefed on any such order, procedure, policy when I came in,” Bolton told the Times, nor was he aware of such a policy when he worked at the White House or after.

“If he [Trump] were to say something like that, you would have to memorialize that, so that people would know it existed,” Bolton said.

Glenn Gerstell, former general counsel for the National Security Agency from 2015 to 2020 — straddling the Obama and Trump administrations — told us in a phone interview that if there was a standing order, he, too, “was not aware of that.”

“If there was a standing order it doesn’t appear to have been memorialized,” Gerstell said.

The normal procedure to declassify information is “quite detailed,” Gerstell said. First, a determination has to be made that the information is something that is significant and in the public interest, and second, that it meets the threshold for declassification because it does not pose a security threat if revealed. The agency that initiated the classification would be notified and can weigh in on whether it thinks the information should remain classified. The president can override the agency’s recommendation, but it would be taken into consideration.

Whether Trump had the authority to have a standing order to declassify documents taken to Mar-a-Lago — overriding the executive orders of past presidents — is an unknown legal question, Gerstell said. But even if you take the position that he didn’t need to formally record anything, he said, then there is the problem of “What does it mean?”

No one knows what exactly Trump was taking with him every day, Gerstell said. Nor did they know after the fact. And so no one, other than Trump, would know what was declassified. If there was a request under the Freedom of Information Act for documents that Trump now claims he declassified, government officials would have no way of knowing whether it had been declassified. Without having the declassification recorded or put in writing, documents would continue to be treated as classified.

And if nothing was recorded or written down to explain what has been declassified, Gerstell said, “How would you know it’s true?”

Kash Patel, chief of staff to the acting defense secretary during the Trump administration, acknowledged in a May interview in Breitbart that documents already recovered by the National Archives from Trump’s Mar-a-Lago residence in January had been declassified even though their markings had not changed.

“The White House counsel failed to generate the paperwork to change the classification markings, but that doesn’t mean the information wasn’t declassified,” Patel said. “I was there with President Trump when he said, ‘We are declassifying this information.’”

In an interview on Fox News’ “Sunday Morning Futures” on Aug. 14, Patel said Trump has the power to declassify documents simply by saying so.

“And this is a key fact that most Americans are missing. President Trump, as the sitting president, is the unilateral authority for declassification,” Patel said. “He can literally stand over a set of documents and say, ‘these are now declassified,’ and that is done with definitive action immediately.”

Charles Stimson, a senior fellow with the conservative Heritage Foundation and a former federal prosecutor, told NBC News that when Trump was president, he had “the ultimate declassification authority.”

“If any president decides to declassify a document and doesn’t tell anybody — but he has made the decision to declassify something — then the document is declassified,” Stimson said.

Ric Grenell, who was Trump’s acting director of national intelligence, echoed that opinion.

“There is no approval process for the president of the United States to declassify intelligence,” Grenell told NBC News. “There is this phony idea that he must provide notification for declassification but that’s just silly. Who is he supposed to notify? I think it’s the height of swampism to think the president should seek bureaucrats’ approval.”

Leon Panetta — who was a chief of staff to President Bill Clinton and served as a CIA director and defense secretary during the Obama administration — called that “nonsense.”

“The reality is, that there is a process for declassifying information,” Panetta said in an interview with CNN’s Jake Tapper on Aug. 16. “If presidents want to declassify, they have to follow that process which basically requires that it be referred to the agencies that are responsible for classifying that material. They have something to say as to whether or not that material should be declassified. So there is nothing that I’m aware of that indicates that a formal step was taken by this president to in fact declassify anything. Right now, this is pretty much BS.”

The Supreme Court has not weighed in on whether Trump could unilaterally ignore past executive orders on declassification procedures. According to a Congressional Research Service report in 2017 on the legal framework for protection of classified information, the Supreme Court has found that the president’s “authority to classify and control access to information bearing on national security … flows primarily from this Constitutional investment of power in the President and exists quite apart from any explicit congressional grant.”

“This language,” the CRS report states, “has been interpreted by some to indicate that the President has virtually plenary authority to control classified information.”

But a standing order, as described by Trump, would not work in a practical sense, some experts said.

The purpose of classifying information is to keep secret information that would damage national security. In order to view classified documents, people must have a need to know the information, they are subjected to background checks and sign nondisclosure agreements.

Following the procedures outlined in previous executive orders provides accountability, allows for an opportunity for relevant agencies to raise important objections, and provides some time for government officials to “prepare for blowback” from allies and adversaries alike, Asha Rangappa, a legal and national security analyst wrote in a Twitter thread on the issue.

“I mean, apart from being dangerous and bad for nat sec [national security], it is chaos inducing, result in confusion and inefficiency and distortions in our intelligence collection, foreign policy, and defense efforts,” Rangappa, a former FBI special agent wrote. “It makes us WEAKER and less able to know what our secrets really are. It’s also dumb. OK, so Trump telepathically declassifies hundreds of docs on his way out. Then guess what? Biden can telepathically reclassify them immediately, too. See how stupid this gets? Markings would mean nothing. No one would know how to store things. It’s idiotic.”

Whether documents were classified may be irrelevant

According to property receipt records, among the items seized from Mar-a-Lago on Aug. 8 were three sets of records labeled either “Confidential Document” or “Miscellaneous Confidential Documents”; three labeled “Miscellaneous Secret Documents”; and four labeled “Miscellaneous Top Secret Documents.” One was listed as “Various classified/TS/SCI documents,” which stands for “Top Secret/Sensitive Compartmented Information.”

“Top secret” is the highest level of classification because the classified information, if released, could cause “exceptionally grave damage to the national security,” as the National Archives explains on its Frequently Asked Questions page about the Information Security Oversight Office.

According to Executive Order 13526 issued in late 2009 by Obama, “Confidential” is “the lowest category of classified information currently in use,” while “information whose release would cause ‘serious damage’ is classified SECRET,” and “information whose release would cause ‘exceptionally grave damage to the national security’ is classified TOP SECRET.”

We still don’t know the content of the documents, but their classification may be irrelevant to a possible case against Trump. None of the three laws cited as the predicate for the search and seizure warrant requires the documents be classified to run afoul of the law.

The warrant cited Section 2071 of Title 18 of the U.S. Code, which relates to someone who “willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys” a government record; Section 1519 of Title 18, which relates to someone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States”; and Section 793 of Title 18, which is part of the Espionage Act that deals with “gathering, transmitting or losing defense information.”

In an interview on MSNBC on Aug. 13, former U.S. Attorney Barbara McQuade said Trump’s declassification defense “will fail because the three laws that they selected to put on the search warrant don’t require that the documents be classified.”

“Classification is irrelevant,” McQuade tweeted the same day. “Government documents that pertain to the national defense may not be withheld from the government upon request for return.”

In an Aug. 11 statement, Attorney General Merrick Garland said the Justice Department did not take lightly the decision to search Trump’s residence. “Where possible, it is standard practice to seek less intrusive means as an alternative to a search,” he said.

The National Archives said it had been negotiating with Trump’s team throughout 2021 for the release of materials. Even after it retrieved 15 boxes of materials from Trump in January, the National Archives continued to pursue materials believed to still be at Trump’s residence. NBC News reported that Trump “received a federal grand jury subpoena this spring for sensitive documents the government believed he retained after his departure from the White House.”

Gerstell said that regardless of whether one thinks Trump should or should not be prosecuted criminally if he is found to have improperly kept classified documents, the Department of Justice had few options left to secure the return of documents that may be classified.

“You’ve got no choice, you’ve got to get that information back,” Gerstell said. “You can ask for it, you can subpoena it” but beyond that, he said, what is the FBI to do?

“We can’t tolerate a situation where national security information is being held in an unsecure location where our enemies could get at it,” Gerstell said.

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