In the weeks since the FBI searched Donald Trump’s Mar-a-Lago estate and seized about 100 documents with classification markings, the former president has insisted he did nothing wrong and argued he declassified the information.
He doubled down on that point Wednesday, saying in a Fox News interview that a president can declassify material “even by thinking about it.”
Trump has provided no evidence that he did declassify the papers, an appeals court noted Wednesday as it rejected his team’s legal arguments and cleared the way for investigators to continue scrutinizing the documents as they consider whether to bring criminal charges.
A separate special master tasked with inspecting the documents also expressed skepticism when Trump’s lawyers hinted at the same defense earlier this week but declined to offer any support for the idea that the papers had been declassified.
Democrats on Thursday were more pointed: House Intelligence Committee Chairman Adam Schiff tweeted, “Tat’s not how any of this works. Not by any stretch of the imagination.” Committee member Joaquin Castro called the claim “ false and absurd.”
Presidents do have broad authority to declassify material, experts say, but there is a detailed process unlike what Trump described. Here’s a look at how declassification works:
WHAT CAN A PRESIDENT DECLASSIFY?
Sitting presidents do have “unilateral and complete authority” to declassify material, though it doesn’t fully extend to information classified under the Atomic Energy Act, said national security attorney Bradley P. Moss.
Since the time of President Harry S. Truman there’s been a set process for protecting the nation’s secrets, including different levels of classification, said Glenn Gerstell, a former general counsel for the National Security Agency.
“It’s critically important that we don’t accidentally release information that, especially in the case of top secret information, could cause exceptionally grave damage to national security,” he said.
HOW DOES DECLASSIFICATION WORK?
There’s also a detailed process for declassification with rules laid out under executive order. Typically, if a president wants to declassify something, he checks with the agency in charge, which has broad say in whether the information becomes public, Gerstell said.
If documents are declassified, there’s usually a painstaking process of blacking out what information still stays secret. “It’s not a question of a concept being declassified, or boxes of documents. It’s a word by word determination,” he said.
The declassification order must be memorialized and any agencies that are affected have to be notified, Moss said. The individual documents then have to be re-marked to show they’re no longer considered classified.
“It’s not clear what Jedi-like lawyers said that you could declassify things with a thought, but the courts are unlikely to embrace that claim,” said Jonathan Turley, a George Washington University law professor who was a Republican witness during the first impeachment proceedings against Trump in 2019.
The Justice Department has said there is no indication that Trump took any steps to declassify the documents seized from his Florida home.
HOW HAS TRUMP DECLASSIFIED INFORMATION BEFORE?
There’s no question that there were times during …read more
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