As the saga surrounding the Federal Bureau of Investigation’s (FBI) raid on the home of former U.S. President Donald J. Trump rumbles on, the power and process surrounding a president’s ability to declassify previously classified documents have come into sharp focus.
According to the inventory of items recovered during the raid, FBI agents seized 11 sets of classified documents from Trump’s Mar-a-Largo. However, Trump took to his Truth social media platform to dispute the claims saying all the documents seized had been declassified.
“Number one, it was all declassified,” Trump said. “Number two, they didn’t need to ‘seize’ anything. They could have had it anytime they wanted without playing politics and breaking into Mar-a-Lago.
According to a Fox News report, Trump’s lawyers, in a signed letter to the Justice Department in June certified that there was no classified material at Mar-a-Largo.
So if Trump really did declassify those documents, why did the FBI raid his home anyway? Kash Patel, a former top Trump administration official, in a phone interview with Breitbart News, suggested that the whole saga could be down to clerical errors.
“Trump declassified whole sets of materials in anticipation of leaving government that he thought the American public should have the right to read themselves,” Patel said. “The White House counsel failed to generate the paperwork to change the classification markings, but that doesn’t mean the information wasn’t declassified. I was there with President Trump when he said ‘We are declassifying this information.’”
Patel’s claim brings into focus the president’s power in regard to declassifying documents. How sweeping is a president’s power to classify or declassify secret documents?
Josh Dunn, a political science professor at the University of Colorado Colorado Springs, described a U.S. president’s power to declassify documents as “pretty extraordinary.”
“The general rule is the president has the authority to declassify material,” Dunn said.
Dunn’s claim is backed up by a 1988 Supreme Court of The United States’ majority ruling in a case between the Department of Navy vs. Egan. The case addressed the legal recourse of a U.S. Navy employee who had been denied a security clearance.
An excerpt from the Supreme Court’s ruling in that case reads thus, “The President, after all, is the ‘Commander in Chief of the Army and Navy of the United States.’ U.S. Const., Art. II, 2. His authority to classify and control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position in the Executive Branch that will give that person access to such information flows primarily from this constitutional investment of power in the president and exists quite apart from any explicit congressional grant.”
The president’s power to classify and declassify documents is so broad and absolute that even The United States Congress can not make laws to limit it, according to Robert F. Turner, associate director of the University of Virginia’s Center for National Security Law. Turner said this while responding to a news report on The Washington Post that suggested Trump revealed highly classified information to the Russian foreign minister and ambassador during a White House meeting in May 2017.
“If Congress were to enact a statute seeking to limit the president’s authority to classify or declassify national security information, or to prohibit him from sharing certain kinds of information with Russia, it would raise serious separation of powers constitutional issues,” Turner said.
Turner also noted that the president is, in fact, the ultimate decider of what is classified and not and that he has the power to overrule his appointees if they disagree with his actions regarding declassification.
“Within the Executive Branch the president is the boss,” Turner added.
Although Trump and members of his administration denied the claims made in The Washington Post’s report, Sen. James Risch, an Idaho Republican, told reporters that the president — in this case, Trump — has the ability to “declassify anything at any time.”
Risch’s statements on the president’s power regarding documents’ declassification even got a “Mostly Truth” rating on the often left-leaning fact-checking PolitiFact’s website.
While a U.S. president has sweeping powers regarding confidential documents, there is, however, a category of documents that can not be declassified by the Commander in Chief. These categories relate to nuclear power and weapons.
The exception to nuclear power goes back as far as the Atomic Energy Acts 1954.
“Even if the president wants to declassify that material, the president cannot,” Dunn said.
However, Dunn said a president’s power over confidential documents ends as soon as he leaves office. Consequently, Trump’s power to classify or declassify confidential documents ended with his tenure on January 20, 2020, when Joe Biden was sworn in. It is also worth noting that Biden has the authority to reverse any declassification made by Trump.
Despite having a near-unlimited power over confidential documents, there is a laid down process that involves written documentation and several other steps for doing so, and whether Trump followed those processes will be central to the Justice Department’s case against the former president.
According to CBS News, the president’s instruction to declassify a confidential document would first be memorialized in a written memo. The white House counsel drafts the Memo, which must be signed by the Commander in Chief.
The president would typically sort the views of the heads of the agency or agencies with stakes in the documents. However, the final decision ultimately lies with the president.
House Judiciary Chairman Adam Schiff told Face the Nation in an interview that he hasn’t seen any evidence that Trump’s camp followed due process in declassifying the documents.
While Schiff might be right in his assessment, his past claims regarding issues concerning Trump suggest his words should be taken with a pinch of salt. In 2017, during the height of the Russian collusion investigation, Schiff told members of the press that he had seen more than circumstantial evidence that Trump’s associates colluded with Russia to influence the 2016 presidential election. Shiff’s claim turned out to be false, following the finding of a 22-month FBI investigation led by Former Special Counsel Robert Mueller. That investigation cost nearly $32 million in American taxpaye’s money.