"Technically irrelevant" or actually crucial?

This is an area that definitely needs expert legal opinion, and I'm not a lawyer

Yesterday, I wrote about the FBI search at Mar-a-Lago and listed the items on the search and seizure receipts. I also wrote about the classification of documents that were found in Trump’s property.

In social media and all over the news, there has been much chatter about whether or not Trump has or has not declassified these documents, and whether or not he has the authority to do so. Predictably, those on the MAGA/Q wing of the GOP are doing everything possible to paint this FBI search as part of a “witch hunt” of their beloved cult leader. Equally predictably, those on the side of reality — which may even include some of the GOP! — are accepting that the search took place, that it was entirely legal, and that there will likely be legal ramifications for Trump.

The well-known far-right outlet, Breitbart, got a scoop (as did the Wall Street Journal) but journalist Matthew Boyle managed to skirt around some vital information in his piece. In the SF Gate, Alec Regimbal points out that Boyle focused on the timeframe from warrant to raid (three days), which, argues Regimbal, does not matter. What does matter, for Regimbal, is what Trump actually had in his possession.

Boyle updated his Breitbart piece to state the statutes under which the evidence was being pursued (18 USC 793, 2071, and 1519), but failed to mention that these were actually criminal statutes (Title 18 of the US Code is “Crimes and Criminal Procedure”!) and what, specifically, they related to. Here are the details:

18 U.S. Code 793 - Gathering, transmitting or losing defense information;

18 U.S. Code 2071 - Concealment, removal, or mutilation generally;

18 U.S. Code 1519 - Destruction, alteration, or falsification of records in Federal investigations and bankruptcy.

I’m no expert, but these look pretty serious to me. Indeed, in Attachment B of the warrant, it states, under the heading “Property to be seized”:

All physical documents and records constituting evidence, contraband, fruits of crime, or other items illegally possessed in violation of 18 U.S.C. §§ 793, 2071, or 1519, including the following:

a. Any physical documents with classification markings, along with any containers/boxes (including any other contents) in which such documents are located, as well as any other containers/boxes that are collectively stored or found together with the aforementioned documents and containers/boxes;

b. Information, including communications in any form, regarding the retrieval, storage, or transmission of national defense information or classified material;

c. Any government and/or Presidential Records created between January 20, 2017, and January 20, 2021; or

d. Any evidence of the knowing alteration, destruction, or concealment of any government and/or Presidential Records, or of any documents with classification markings.

Those four points spell out just how serious this matter is. But that didn’t matter to Boyle of Breitbart. At 2.39 p.m. Eastern Time, he added an update to his article, the first sentence of which he will, if there is any justice in this world, never live down:

All of this is technically irrelevant anyway because Trump – who as president has original and absolute declassification authority – said he declassified all of these documents.

Well, goddammit! Merrick Garland and all those FBI agents must be feeling extremely foolish now, having bulldozed ahead without bothering to check whether they actually had the power to issue the warrant and conduct the search in the first place! If only they’d checked with Breitbart’s esteemed legal scholar, Matthew Boyle, they could’ve saved themselves a lot of silly bother!

So…can Trump actually declassify documents?

In short, no. He certainly cannot do so now, as the former president. When he was in office, however, he could — but it is not a simple and straightforward matter.

Executive Order 13526 states:

Sec. 3.1. Authority for Declassification.

(a) Information shall be declassified as soon as it no longer meets the standards for classification under this order.

What are the standards for classification under EO 13526? We have to go back to Section 1.1 to see those:

Sec. 1.1. Classification Standards.

(a) Information may be originally classified under the terms of this order only if all of the following conditions are met: 

(1) an original classification authority is classifying the information;
(2) the information is owned by, produced by or for, or is under the control of the United States Government;
(3) the information falls within one or more of the categories of information listed in section 1.4 of this order; and
(4) the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security, which includes defense against transnational terrorism, and the original classification authority is able to identify or describe the damage.

(b) If there is significant doubt about the need to classify information, it shall not be classified. This provision does not: 

(1) amplify or modify the substantive criteria or procedures for classification; or
(2) create any substantive or procedural rights subject to judicial review.

(c) Classified information shall not be declassified automatically as a result of any unauthorized disclosure of identical or similar information.

(d) The unauthorized disclosure of foreign government information is presumed to cause damage to the national security.

What is Section 1.4?

Sec. 1.4. Classification Categories. 

Information shall not be considered for classification unless its unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security in accordance with section 1.2 of this order, and it pertains to one or more of the following:

(a) military plans, weapons systems, or operations;
(b) foreign government information;
(c) intelligence activities (including covert action), intelligence sources or methods, or cryptology;
(d) foreign relations or foreign activities of the United States, including confidential sources;
(e) scientific, technological, or economic matters relating to the national security;(f) United States Government programs for safeguarding nuclear materials or facilities;
(g) vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security; or
(h) the development, production, or use of weapons of mass destruction.

I addressed section 1.2, mentioned in section 1.4, above, yesterday.

Back to Section 3.1 — Authority for declassification:

(b) Information shall be declassified or downgraded by:

(1) the official who authorized the original classification, if that official is still serving in the same position and has original classification authority;
(2) the originator’s current successor in function, if that individual has original classification authority;
(3) a supervisory official of either the originator or his or her successor in function, if the supervisory official has original classification authority; or
(4) officials delegated declassification authority in writing by the agency head or the senior agency official of the originating agency.

(c) The Director of National Intelligence (or, if delegated by the Director of National Intelligence, the Principal Deputy Director of National Intelligence) may, with respect to the Intelligence Community, after consultation with the head of the originating Intelligence Community element or department, declassify, downgrade, or direct the declassification or downgrading of information or intelligence relating to intelligence sources, methods, or activities.

Essentially, documents can be declassified by the person who classified them (in this case, the President) if that official is still serving in the same position and has original classification authority.

Is Trump still serving in the same position? No.

Does he have original classification authority? This is, to borrow a phrase from Breitbart’s Matthew Boyle, “technically irrelevant”.

This is an “and”, not an “or”. Trump absolutely cannot declassify any classified documents. To do so, he would still have to be serving in the office of President. The only people who believe that Trump is still the President of the United States of America are the ultra-MAGA/Q cult members, some of whom are serving in Congress. But their beliefs cannot trump (pun intended) reality. Joe Biden is the 46th President of the United States of America. That’s a fact.

Per 3.1 (b) (2), Biden, as Trump’s successor, would have to declassify the documents himself. I think we know that the possibility of that is remote.

Could Trump have declassified documents while still President?

Yes, Trump could have, quite properly, declassified certain documents while in office.

Per 3.1 (b) (1), the official who authorized the original classification, if that official is still serving in the same position and has original classification authority, could declassify documents. That means he could have done so from his inauguration until Biden’s inauguration.

But there are procedures that must be followed. The text of the Executive Order is clear in this regard. An official cannot just classify and declassify willy-nilly.

There are certain timeframes for classification, which are stated in Section 1.5:

(a) At the time of original classification, the original classification authority shall establish a specific date or event for declassification based on the duration of the national security sensitivity of the information. Upon reaching the date or event, the information shall be automatically declassified. Except for information that should clearly and demonstrably be expected to reveal the identity of a confidential human source or a human intelligence source or key design concepts of weapons of mass destruction, the date or event shall not exceed the time frame established in paragraph (b) of this section.

(b) If the original classification authority cannot determine an earlier specific date or event for declassification, information shall be marked for declassification 10 years from the date of the original decision, unless the original classification authority otherwise determines that the sensitivity of the information requires that it be marked for declassification for up to 25 years from the date of the original decision.

Well, it’s looking like Trump could quite properly have classified information and put an automatic declassification date of the final day of his term of office, 20th January 2021.

However, I would argue that this would be highly unlikely. Trump was so arrogant that he thought that he would win a second term, with, of course, considerable violent assistance from far-right agitators. For Trump to write 20th January 2021 as a declassification date, he would have to entertain the possibility of losing his security clearance on that day. That obviously wasn’t something he was prepared to consider.

It is more likely, I think, that he would have marked it 10 or 25 years. This still puts a timeframe on the documentation, but that’s not the point. Whether 10 or 25, it wouldn’t matter, because if the baying far-right mob had succeeded in preventing certification of the election of Joe Biden on 6th January 2021, Trump would have been a dictator. All laws would have gone right out of the window. Procedures? Ha! Who cares?

There is something else to consider. We do not actually know who originally classified the documents that the FBI found at Mar-a-Lago. It could’ve been Obama, Bush, or Clinton, for all we know. Anything that Clinton marked for declassification after 25 years between late 1997 and January 2001 will still be classified.

There are some things that Trump would not have the authority to declassify, much less take out of the White House and stuff into his safe at Mar-a-Lago. As it states in Section 1.5 (a):

Except for information that should clearly and demonstrably be expected to reveal the identity of a confidential human source or a human intelligence source or key design concepts of weapons of mass destruction, the date or event shall not exceed the time frame established in paragraph (b) of this section.

Paragraph (b), of course, is where we find the 10-year and 25-year durations.

The fact that some of these documents seized by the FBI were “top secret” means that their disclosure would cause exceptionally grave damage to national security. Would these documents be subject to 10- or 25-year declassification? Probably not.

It would be reasonable, then, to assume that what the FBI seized has something to do with one or all of the following: confidential human source(s); human intelligence source(s); key design concepts of weapons of mass destruction.

Just what the hell was he doing with this stuff in his post-presidential office/golf resort? Not keeping them as mementoes, surely. As more details emerge, everything should come together to provide the full story. That’s the FBI’s responsibility.

Finally, let’s not forget that the warrant served shows that Trump is being investigated under the Espionage Act of 1917. That means you can’t retain certain information to do with national security.

This is a serious matter. Trump is in peril. And he knows it.