Ever since Rudy Giuliani suggested President Trump might invoke executive privilege to prevent the public disclosure of any report Robert Mueller might produce at the end of his investigation, pundits and legal experts across the political spectrum have focused on the prospect from almost all angles, analyzing it, attacking it, defending it, and all around beating it to death. However, in my opinion, the real threat to public disclosure is Trump’s ability to unilaterally classify the report.
Simply put, there are currently no restrictions on the President’s ability to reach down into an agency and classify any document on his own authority, whether it be a formal investigative report or a cafeteria menu. The only governing rules are established by Executive Order 13526 – the latest iteration of a long line of Executive Orders on national security information classification. But for reasons explained below, those rules are either so broad as to be relatively meaningless or are virtually unenforceable by anyone seeking to prove that Trump misclassified a document.
Two articles already have been written here at Just Security on the idea that Trump might invoke executive privilege. In the first, Douglas Letter writes that the entire argument is a red herring because Trump could just order Deputy Attorney General Rod Rosenstein to officially find that public release of the report is not in the public interest, which would trigger its nondisclosure. In the second, Jessica Marsden and Andy Wright respond to Letter’s offering, arguing that such an order would violate the Article II Take Care clause. They then explain why, in their opinion, a claim of executive privilege would ultimately prove unsuccessful in preventing the public disclosure of the report.
Both of these pieces are well-reasoned, thought-provoking, and pretty well cover all angles of the privilege discussion. However, I don’t think that’s the issue we should be worried about. There is another possible tactic that would be much more difficult to overcome: Trump could just classify the report.
How Trump Could Classify the Mueller Report
With respect to the substance of classifiable information (as opposed to procedural requirements, which aren’t really relevant here), Executive Order 13526 only requires that two factors be satisfied for a document to be “properly classified.” First, Section 1.2 requires that public disclosure of the information could at least (for a “Confidential” classification) “be expected to cause damage to the national security that the original classification authority is able to identify or describe.” Second, Section 1.4 states that classified information must pertain to one of eight subjects, of which we are particularly interested in two: (d) foreign relations or foreign activities of the United States; and (e) scientific, technological, or economic matters relating to the national security. However, as we will soon see, these two requirements cover pretty much anything the President wants them to cover.
Regarding the first factor, note the first weasel word: could. The Order does not say that the information must be expected to cause damage to the national security, but only that it could be expected to cause damage. Due to its use of the passive voice, it doesn’t even specify who has to be able to reach that conclusion. In other words, in order to classify something, the original classification authority does not even need to show that he expects damage to occur, let alone that damage will occur; he only needs to show that someone could expect damage to result from disclosure.
Moreover, “damage to the national security” is such a broad term as to be virtually useless. Information about food used in Army cafeterias can be classified because someone could expect that a Sherlock Holmes-type could deduce our strategic and tactical military plans from how many people ate food at Army bases around the world (this tends to be called the “mosaic theory”). The D.C. Circuit held that a white paper on trade policy was properly classified (after a district judge ordered its disclosure) because someone could expect that its disclosure could make it difficult for the government to negotiate the best deals in trade agreements. The D.C. Circuit also held that pictures of the burial at sea of Osama bin Laden were properly classified, not because they depicted anything untoward, but because someone could expect that their release “could be interpreted as a deliberate attempt by the United States to humiliate bin Laden.” In other words, they were classified not because of what they contained, but rather because of how hostile actors might spin their authorized release through the Freedom of Information Act (FOIA).
The second factor is no less inclusive, especially in light of the two categories mentioned above. Anything pertaining to foreign relations or foreign activities is fair game. Economic matters “relating to the national security” are fair game. Section 1.4 actually contains two weasel words that render it generally toothless: pertains to and relating to. First it says that information is only classifiable if it pertains to one of the eight categories, then it refers specifically in subsection (e) to the category of “scientific, technological, or economic matters relating to the national security.” Normally these words would be unremarkable, but you must consider them in light of the definition the government gives them, as shown in arguments by various agencies in FOIA matters: “Life, like law, is ‘a seamless web,’ and all documents ‘relate’ to all others in some remote fashion.”
Considering the remarkable degree of freedom given to classification authorities – and the President is explicitly considered to be a classification authority – it is easy to understand why advocates for legislative reform like myself keep arguing that, legally speaking, every act of declassification or decision not to classify something is really just a discretionary act of grace on the part of the Executive Branch, which cannot be compelled due to Congress’ persistent disinterest in legislating on security clearances or classification policy.
In fact, in the one instance in recent history where a federal judge did overrule an agency on a classification matter – the aforementioned case about a white paper on trade – the ruling was reversed on appeal. It’s no stretch of the imagination to envision a plausible argument for how disclosure of the report of an investigation into the President of the United States could be expected by someone to harm the national security by having some sort of adverse effect on something related to foreign affairs.
Why Classification Would Prevent Disclosure
Marsden and Wright explain all the reasons that a claim of executive privilege (or even an order issued to Rosenstein) would not keep the report secret for long. A copy still has to be provided to Congress, which can decide on its own to release it. People can request it under FOIA, at which point a federal judge will decide if it is really privileged. In short, executive privilege wouldn’t work.
But classifying the report is a different matter. Let’s take the Congressional exception first. If Trump classified the report, the fact that it was transmitted to Congress would have less of an effect. Even though members of Congress could not be held criminally liable for releasing a classified document because of the Article I Speech or Debate Clause, the rules of the House and Senate are the exception to that exception.
The Speech or Debate Clause says that members and their staff shall not be punished “in any other place” for legislative conduct, including ostensibly criminal violations of the Espionage Act, but they can definitely be punished by Congress if they violate a rule. And both the House and the Senate have rules – House Rule X(11)(g) and Senate Resolution 400 – explicitly stating the steps that have to be taken to release classified information over the President’s objection, which include a majority vote by the appropriate House or Senate intelligence committee and, if the President objects, a majority vote by the full chamber.
Take a moment and imagine a majority of either chamber voting to override the President on a classification decision, and you’ll see the problem here. Even if one or both chambers turn Democratic in the midterm elections, they would be unlikely (in my opinion, at least) to invoke an authority neither chamber has ever invoked before in the face of a passionate outcry from the Intelligence Community, which, as noted above, has consistently (and relatively successfully) argued in both Democratic and Republican administrations that Congress has absolutely no say in classification matters.
While classification of the Mueller report might prove to be the final straw for a Democratic Congress, overriding it will not be a step any Congressman will take lightly. And anyone voting for declassification would be voting to potentially set in motion a constitutional crisis over separation of powers that neither side has previously shown a desire to see through to its conclusion.
But FOIA is still there, right? Yes and no. Yes, someone can still file a FOIA request for a classified document, but they won’t get it. Courts simply refuse to second-guess the Executive Branch on classification decisions right now. The only thing a judge will do is ask the agency, “is this document classified,” and if the agency says yes, that’s the end of the argument. Again, witness what happened in the trade white paper case when a judge said he didn’t think it was properly classified; he was overruled and reversed. So a FOIA requester can give the best argument written by top legal scholars as to why the Mueller report does not meet the criteria for classification as established by Executive Order 13526, and the judge will ignore it, because he or she has basically been told in no uncertain terms that they simply can’t overrule an agency’s classification decision.
There is one additional option, but it would not really work in this case. Section 3.5 of E.O. 13526 allows a person to submit a request for “Mandatory Declassification Review” (MDR) to an agency. In essence, that asks for a record to be reviewed for declassification by the agency to see if it really needs to remain classified. Many agencies are good about doing a conscientious job of applying a rigorous analysis of the Order’s requirements (including the spirit of the requirements, as opposed to the strictly legal interpretation I discussed above) in response to MDR requests. Even if they are not, a requester can file an appeal to the Interagency Security Classification Appeals Panel (ISCAP) at the National Archives, which is very good about it.
However, in this particular case, that appeal process would be effectively a waste of time. In this case, the President is the one making the classification decision, or at the very least he is directing someone at the Department of Justice to do so. If someone files an MDR request for a document the President has personally classified or directed to be classified, a career staffer at DOJ is not going to declassify it (and even if he did, the President could just reclassify it again).
So you would have to file an appeal to a higher-level DOJ official, who would face the same problem. So you would file an appeal to ISCAP, which, on paper, “advises the President.” As a matter of law, ISCAP does not exercise independent decision-making authority; it advises the President that something should be declassified, and if he doesn’t object, the information is then declassified (and I am unaware of any President ever objecting). This is the reason that ISCAP records are considered Presidential records under the Presidential Records Act and cannot be accessed through FOIA like other agency records.
Once again, take a moment, and this time imagine Trump not objecting to the declassification of the Mueller report that he personally classified or ordered classified to protect himself.
Full disclosure, I seriously considered not writing this article, since I would not want to be responsible for giving the President this idea, which I think would be a terrible abuse of authority and the perfect example of the need for legislative reform to prevent such abuses. However, as we saw in the last few months with security clearances, one of Trump’s advisers knows the law at least as well as I do, and I think it’s safe to assume that if they haven’t thought of this yet, they will.
So in the end I decided to write this, so that people could be prepared for it should it happen and perhaps devise ways to overcome it. I could be wrong about this, and I hope I am, but I believe we should be far less concerned about Trump claiming executive privilege or ordering Rosenstein not to publicly release the report and far more concerned about him classifying it. That is his smartest play.
(Photo courtesy of Max Pixel)