The
current Executive Order implementing this statutory command was issued by Barrack Obama in 2009.
Among other things, the order limits the authority to declassify certain information, placing under the Director of National Intelligence the authority, “after consultation with the head of the originating Intelligence Community element or department,” to “declassify, downgrade, or direct the declassification or downgrading of information or intelligence relating to intelligence sources, methods, or activities.” Those are the types of information classified as “top secret” and “separate compartmented information” (SCI) that the FBI retrieved from Mar-a-Lago.
Various
regulations promulgated under the Executive Order require consultation with the agency that originally classified information before
anyone may try to declassify it, because those agencies have what is called, in the intelligence world, “
equity” in the information that must be protected.
There are numerous other statutory and regulatory restrictions that prohibited Trump from doing what he now claims to have done, including restricting the power to declassify any documents containing information relating to
nuclear weapons and
intelligence agents.
Significantly, some of the materials that the Justice Department just reported among those seized were identified as “human source” information, carefully regulated by statute.
The presidential executive order also specifies that no official leaving government service may “remove classified information” from the government’s control or “direct that information be declassified in order to remove it from agency control.” Thus, for obvious reasons, even an official who has the authority to declassify information may not do so in order to take it with him as a souvenir when he leaves office.
Of crucial importance, the Supreme Court has held that restrictions like these were effective to prevent a president from lawfully and effectively doing what Trump now purports to have done.
In the
Nixon Tapes case, which I argued many years ago, the Supreme Court unanimously ruled that a president is bound by otherwise valid regulations so long as they remain in force, as all of the declassification restrictions did throughout the Trump presidency.
Nixon had tried to block the Watergate special prosecutor from pursuing evidence in the president’s custody (the secret White House tape recordings), arguing that the prosecutor, as the president’s subordinate in the executive branch, had to defer to the president’s constitutional supremacy as “chief executive.” In reasoning equally applicable to Trump’s current argument, the unanimous court noted that the prosecutor was operating under regulations issued by the attorney general (and approved by the president) that gave the prosecutor autonomous authority to pursue evidence from anyone, and the president could not interfere with that quest: “So long as this regulation is extant it has the force of law.”
The court also rebuffed the contention that the president’s ultimate control over the regulations and the attorney general who issued them undercut their binding effect on the president: “
t is theoretically possible for the Attorney General to amend or revoke the regulation defining the Special Prosecutor’s authority. But he has not done so. So long as this regulation remains in force the Executive Branch” — including the president there — “is bound by it, and indeed the United States as the sovereign composed of the three branches is bound to respect and to enforce it.”
Trump has never claimed that he revoked or amended the applicable 2009 executive order governing the declassification processes or directed the modification of any of the regulations issued under that presidential order, which bind the entire executive branch, including him, in controlling the declassification process.
Recognizing the principles at stake, a federal appeals court held in 2020 that a clumsy public reference by Trump to a secret program had not accidentally or effectively “declassified” the information: “Declassification cannot occur unless designated officials follow specified procedures … Because declassification, even by the President, must follow established procedures.” (Emphasis added.)
Therefore, attorney general Garland and the rest of the country can ignore Trump’s smokescreen about whether he “declassified” the Mar-a-Lago documents: He didn’t, because he couldn’t. Thus, Garland need decide only whether threats of violence will cow him into giving Trump another pass.
In the Nixon Tapes case, which I argued, the Supreme Court unanimously ruled that a president is bound by otherwise valid regulations … including declassification restrictions.
thehill.com
