How US presidents can declassify documents

UPDATE (June 8, 2023): President Donald Trump said he was indicted in the investigation of his handling of classified documents after his presidency ended. The Justice Department has yet to confirm the indictment. The original story continues as published below:

FBI agent get 11 sets of secret files from former President Donald Trump’s Mar-a-Lago estate during an August 8 search, court records reveal.

In a post on Truth Social, his social media platform, Trump later claimed that the documents were “all declassified”. Kash Patel, who served as chief of staff to the acting secretary of defense in the Trump administration, also declare that Trump declassified the documents.

While it may still not be legal for Trump to possess declassified documents from his presidency, many VERIFY readers, including Beverly and Carole, have asked if the president could declassify the documents. documents while in office or not.

Can the President declassify documents?

Yes, the president can declassify documents while in office, but there is no process they must follow.

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American classification system there are three levels: top secret, secret and secret.

“That’s based on how much damage its release would do to the national security of the United States,” said Kel McClanahan, executive director of the National Security Adviser. “When you classify a document, it means that only people with a security license equivalent to classification or higher can read it.”

A sitting president of the United States has much authority to classify and declassify certain documents, but former presidents do not have authority over classification and declassification.

Incumbent presidents can categorize the document as long as they can “make a reasonable argument that it is relevant to national security.” On the other hand, the president “doesn’t have to give any reason to declassify” the information, according to McClanahan.

“He could just say, ‘I decided that this should be declassified,’ and it was declassified,” McClanahan said.

Executive Order 2009 directs the head of a government agency initially treated as classified information to oversee declassification and to set some rules for that process. But the protocols outlined in the executive order do not apply to the president, McClanahan said.

However, presidents often follow an informal protocol when declassifying documents, Richard Immerman, a historian and professor at Temple University, told VERIFY.

First, the president will consult all ministries and agencies that have an interest in a classified document. Those ministries or agencies then give their assessment as to whether the document should be classified for national security reasons. If there is a dispute between the agencies, they will argue, but the president will ultimately make the declassification decision, Immerman explained.

Add word VERIFICATION: No, Florida Governor DeSantis Hasn’t Defended the FBI’s Search for Mar-a-Lago on ‘Hannity’

When the documents are declassified, they are reviewed line by line. In many cases, some words, sentences and paragraphs were still redacted, even after the documents were declassified, Immerman said.

The Supreme Court determined in Decision 1988 on the Department of the Navy v. Egan that the power of the president over classified information comes from executive power granted by Article II, Section 2 of the United States Constitutionwhich says in part that “the President shall be the Commander-in-Chief of the Army and Navy of the United States of America.”

“His authority to categorize and control access to information relevant to national security and to determine if an individual is trustworthy enough to take up a position in the Law Enforcement will give whether or not that person’s access to such information arises primarily from this constitutional investment of power in the Executive. President, and exists entirely separate from any express congressional funding,” the Supreme Court ruling read.

“Although there is no specific process the president must follow to declassify a document, federal courts have ruled that they will “refuse to recognize what they consider to be inferences by the president,” McClanahan said. declassification”.

United States Second Circuit Court of Appeals wrote in a 2020 decision on whether then-President Trump’s statements declassified the existence of a CIA program that “declassification, including by the president, is subject to established procedures.”

If a document is declassified, that does not mean it can be shared widely. For example, nuclear information — often classified — is also protected by the federal Atomic Energy Act of 1954, McClanahan explained.

The Washington Post reported The FBI searched Mar-a-Lago for “nuclear material,” among other classified information.

“Because [nuclear information] With this dual protection, even if you declassify a nuclear document, you can’t release it because it’s still called Restricted Data,” McClanahan said.

“So to the extent that he [Trump] has any nuclear information in it, declassification will not help him at all, because he will still disseminate restricted data or move Restricted Data,” he said. more.

There are other federal laws that forbid the president from obtaining government records, whether they are classified or declassified. However, breaking those laws – or most other laws – does not automatically disqualify someone from being president, as simple presidential qualifications are enshrined in the US Constitution.

Add word VERIFICATION: No, being convicted of obtaining government records will no longer disqualify Trump as president

Add word VERIFICATION: No, Obama didn’t keep 33 million pages of records of his administration