In the days since former President Donald Trump announced on his social media platform that the Federal Bureau of Investigation (FBI) had executed a search warrant at his home and business at Mar-a-Lago, there has been much discussion as to what authorities Trump has or had as a former president and what laws or regulations he may have violated by possessing documents with classification markings outside of proper controls. This has led to the repeating of many myths and misunderstandings, often by the former president himself, as to presidential authority relating to classified information.
I spent over 30 years overseeing the proper handling of such information, initially in the Department of Defense and ending my government service responsible for the oversight of classified information within the entire executive branch as Director of the Information Security Oversight Office (ISOO).
What follows is my attempt to address some of the more common myths and misunderstandings regarding a president and classified information that have recently circulated.
Myth #1: As former president Nixon once said, “When the president does it that means that it is not illegal.”
True that Nixon said it, but the idea is false. Our nation is founded on a fundamental rule of law principle that the United States has a government of law, not men. In the Federalist Papers, James Madison wrote: “If men were angels, no government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” It is in recognition of this aspect of human nature that our founders embraced the concept known as the separation of powers, intended to ensure that no one person can gain absolute power and stand above the law.
Myth #2: As long as information has been declassified by competent authority or is otherwise unclassified, former government officials (to include a former president) are free to possess and/or disclose the information at will.
False. Much of the unclassified information created by the federal government’s executive branch or otherwise in its custody is nonetheless sensitive and requires safeguarding or dissemination controls pursuant to and consistent with applicable law, regulations, and government-wide policies. Known as Controlled Unclassified Information, examples include information relating to federal taxpayers, witness protection, critical infrastructure protection and nuclear security. Both current and former government officials are subject to administrative or criminal sanctions should they improperly disclose or otherwise mishandle such unclassified information. Moreover, the unauthorized possession of certain controlled unclassified information such as Naval Nuclear Propulsion Information could be subject to prosecution under, among other statutes, 18 USC 793 of the Espionage Act, which does not mention classified information but rather applies to closely held national defense information the disclosure of which, if publicly known, could be used to the injury of the United States or to the advantage of any foreign nation.
Myth #3: The President possesses the “absolute authority” to declassify information at will.
Partly true, partly false. During and after his presidency, Trump has repeatedly made this claim. It is true that the president’s authority to classify and thus declassify information in the interest of national security derives from his Article II constitutional authority as commander-in-chief and the position of chief executive responsible for foreign relations. A Supreme Court decision — Department of the Navy v. Egan — is often used to assert unchecked presidential authority over classified information. However, there is information which is “classified” not pursuant to the president’s Article II authority but rather pursuant to statutory law. For example, the Atomic Energy Act of 1954 as amended (AEA) states that “all data concerning (1) design, manufacture, or utilization of atomic weapons; (2) the production of special nuclear material; or (3) the use of special nuclear material in the production of energy” is effectively “born classified” unless officially “declassified or removed from the Restricted Data category” in accordance with the Act. Unlike national security information classified pursuant to the president’s executive authority, information classified by the AEA is not subject to automatic or unilateral declassification by a president but rather requires review prior to the removal of classification safeguards.
Another example is when an allied or friendly nation does not want revealed the fact that they have shared extremely sensitive information with the U.S government. Unless the United States can convince a partner nation that their information can be adequately protected, they may be dissuaded from sharing it, thus placing the United States and its citizens at increased risk. To facilitate exchanges of such information, the United States has entered into a number of legally binding agreements with foreign governments.
A notable example of Trump’s violation of such an agreement dates from early in his administration when reports surfaced that Trump had in an Oval Office meeting disclosed to Russian Foreign Minister Sergey Lavrov and the Russian Ambassador Sergey Kislyak highly classified information which had been shared by a U.S. ally (reportedly Israel) and concerned an Islamic State terrorist operation. Trump’s alleged disclosure would have run afoul of the General Security of Miliary Information Agreement between the United States and Israel (similar to agreements with many other allied and friendly governments) which states in part with respect to “classified information communicated directly or indirectly between our two governments … the recipient government will not release the information to a third government or any other party without the approval of the releasing government.” While the president is free to repudiate this executive agreement, there is no indication that this was Trump’s intent or that he did so – indeed, it remains in effect to this day.
Myth #4: Trump claims that while president he had a “standing order that documents removed from the Oval Office and taken to the residence were deemed to be declassified the moment he removed them.”
Absurd. While hypothetically true, this notion is implausible from a practical perspective. Most classified information, even information which passes across the president’s desk, is classified “derivatively.” For national security information to become classified, an individual occupying a position with “original classification authority” must determine that the information meets the requirements for classification. Out of almost 3 million individuals with security clearances, ISOO has reported that less than 2,000 possess original classification authority. Everyone else classifies derivatively, i.e. they simply carry forward the original decision that specific information is classified. In fiscal year 2017 (the last year for which numbers exist), ISOO reported that there were 58,501 original classification decisions compared to 49 million derivative decisions. Traditionally, rarely if ever does the president personally serve as an original classification authority. If the former president personally declassified information contained in documents removed to the White House residence, procedures should have been in place to notify the official who originally classified that information who in turn would have to have notified the potentially millions of individuals who derivatively classified or otherwise had copies of that same classified information. No such procedures appear to have existed during the Trump administration. As such, if Trump had, in fact, declassified the records in question, the original classifier and the myriad of authorized users of that information would remain oblivious to the fact that the information contained therein would no longer have the legal protections of the classification system. One such user was the president’s own national security advisor, John Bolton, who stated, “I was never briefed on any such order, procedure, policy when I came in,” adding that he had never been told of it while he was working there, and had never heard of such a thing after.
Myth #5: Former presidents control the disposition of their White House records.
False. Starting with the administration of President Ford, and in reaction to the Watergate scandal of the Nixon administration, in addition to the Federal Records Act, records of each presidential administration are controlled by the Presidential Records Act (PRA), depending upon which element of the White House is involved. In this Act, Congress made it clear that the American people, not the former president, owns the records and assigns responsibility to the incumbent president for the custody and management of his presidential records. As stated in the Act, records can be in any media, including textual, audiovisual, and electronic.
While many presidential records have been lost to history, starting with Franklin Roosevelt the tradition has been to make presidential records available to the public at presidential libraries. Congress legislated this policy, passing the Presidential Libraries Act in 1955 with the intent to preserve the documents and artifacts of our presidents, helping the American people to learn about our nation and our democracy. Beginning five years after the end of an administration, researchers and other members of the public can begin to access the records of a prior administration subject to the restrictions of the PRA and the Freedom of Information Act, including the current rules governing the safeguarding of classified information.
The declassification of presidential papers and records presents some unique issues and concerns which normally require a page-by-page or paragraph-by-paragraph review and referral to the originating agency. Because of their highest policy and classification level, presidential records often contain equities, information in which a classifying agency has an interest and need to review before declassification. In addition, the records often contain multiple agency equities requiring referral to more than one agency. Several equities can be present in a single presidential document. In addition, the statutory authorities governing presidential papers and records usually require a page-by-page (or paragraph-by-paragraph) review for other concerns such as statutory restrictions and privacy.
In sum, records of a president that were used during official duties belong to the American people – not to the president – and decisions about declassification and access to those materials are made by professionals within the federal government with the continuing responsibility to ensure that any disclosures do not place the security of our nation at increased risk.