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 on charges of criminally mishandling national defense information and 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 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 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 then-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.”
The current executive order implementing this statutory command was issued by Barack 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 “sensitive 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: “[I]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.
NOTE: This post has been updated from the original to correct the term “sensitive compartmented information.”
Philip Allen Lacovara was deputy solicitor general of the United States for criminal and national security matters, counsel to the Watergate special prosecutor and president of the District of Columbia Bar.
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