No, Trump didn’t declassify everything; it’s barred by the Nixon tapes decision
The Justice Department’s
remarkable filing last night makes it more likely that attorney general
Merrick Garland will have to prosecute former president
Donald Trump for criminally mishandling national defense information and for conspiring to obstruct the federal investigation. Trump’s strategy for avoiding prosecution for mishandling vital national secrets seems to be proceeding on two equally misguided tracks.
One is the typically Trumpian approach of deploying ominous threats; thus, shortly after the search of his Mar-a-Lago estate, he sent a thinly veiled warning to attorney general Merrick Garland referencing
the heat generated among Trump’s base. Over the weekend, faithful enabler Sen.
Lindsey Graham (R-N.C.), using the Fox News microphone, more bluntly predicted “
riots in the streets,” if Trump is prosecuted, a brazen attempt at obstruction that should not intimidate Garland.
The second branch of the strategy is another stratagem that Trump has used successfully in the past, misstating the governing law, personally and through surrogates. This approach helped him avoid prosecution related to
Robert Mueller’s Russian-influence investigation, when Attorney General
William Barr relied on a misstatement of the law to exonerate his boss.
Since the Aug. 8 search at Mar-a-Lago, Trump, his lawyers, and Fox News commentators have repeatedly incanted the refrain that there can be no crime because Trump
had “declassified” everything anyway.
As one Fox “legal commentator”
asserted: “If Trump declassified them as he insists, then the statute involving the retention of ‘defense information’ has no relevance.”
The problem with this alternate defense is that it is both legally inaccurate (because the relevant statutes apply, whether or not information is formally “classified”) and it actually is foreclosed by a Supreme Court case involving former president
Richard Nixon, whom Trump has now eclipsed as a scofflaw.
Too many commentators have blithely accepted the underlying but false proposition that a president may declassify anything he wants simply by handing it to someone or taking it home. Even
the New York Times erroneously stated that there is “no Supreme Court precedent” that would limit a president’s power to declassify any documents he chooses to release. The Times notes that, as commander-in-chief of the armed forces, the president is the ultimate “classifying authority” and, it is inferred, he may declassify anything, anytime. These commentators merely take issue with Trump’s contention that he
did so with the files that he spirited off to Mar-a-Lago.
The crucial flaw in that analysis is that — like every other presidential power — the law may regulate the circumstances in which that power may be exercised, especially when the presidency itself has accepted those constraints. That is the situation with the
process for declassifying state secrets, even by the president.
It should be no surprise that the processes for both classifying and declassifying national defense information are elaborately regulated. A 1994 amendment to the National Security Act
directed that “the President shall, by Executive order or regulation, establish procedures to govern access to classified information which shall be binding upon all departments, agencies, and offices of the executive branch of Government.”
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