Among the government documents was former President Donald Trump, who was wrongfully detained at Mar-a-Lago.more than 300 documentswho bore unique markings. Not only should these documents have been turned over to the National Archives and Records Administration (per the Presidential Records Act), but keeping them in an unsecured location violates rules for handling classified material and could pose a security threat national. Risk. Trump defended his behavior by claiming without any evidence that he released the documents.
These developments raise important questions about how classification and recusal work, what rules govern the system, whether the president is required to abide by those rules, and how all of this might affect the legal issues in this case.
What information can be classified and by whom?
According to a system established bypresidential decreeIn 2009, the president, vice president, and agency heads will be able to designate other executive branch officials to serve as original rating authorities. These officials may classify government information if they determine that disclosure would harm national security. There are three levels of classification, based on the severity of the anticipated harm to national security: Confidential, Secret, and Top Secret. Within the "Secret" and "Top Secret" categories, certain information derived from intelligence sources, analytical methods, or processes may be classified as "Compartmentalized Sensitive Information."
In addition to this system, Congress has aparallel systemfrom the 1950s to verify certain nuclear information. Any information related to the design, manufacture or use of nuclear weapons; the production of special nuclear material; or the use of special nuclear material in power generation should be designated as Restricted Data. This process is overseen by the Department of Energy.
What are grade marks and why are they important?
The whole reason for the classification system is to ensure the protection of classified information. These protections can only be put in place if the employees handling the information know that it is classified. Therefore, the classification process consists of two steps: determining if the information is sensitive and labeling the information to ensure that it is.
The government has two main ways to achieve this second step.
The first is amarking system. All classified information in a document must be clearly marked so that anyone handling that document knows exactly what protections are required. Labels must include the classification level, among other information, for example, Confidential, Secret, Top Secret, Top Secret/Departmentally Sensitive Information, Restricted Data, Previously Restricted Data.
Second, agencies maintainEvaluation guidesspecify the categories of information that the original security authorities considered classified (for example, "names of undercover agents"). These guides can be hundreds of pages long and there are thousands of them throughout the federal government.
How is classified information protected?
There are a number of safeguards to protect against the disclosure of classified information. Only government employees and contractors with the required security clearance can access classified documents, and even then, only if they have a "Need to Know." Some documents classified as highly classified/subdivided secure information may only be accessible to a handful of law enforcement officials. Even classified documents must be transmitted and stored in secure systems or facilities. Administrative or even criminal sanctions are imposed on employees who handle confidential documents or transmit them without authorization.
Information marked as restricted data is subject to separate and stricter protections than other types of classified information. However, if the Departments of Energy and Defense jointly determine that data relating to the military use of nuclear weapons can be adequately protected under the normal classification system, they may reassign such data as previously restricted data. The data still needs to be protected, but it will be treated as other types of classified information rather than restricted data.
How does the downgrade work?
Information is generally disclosed through a process known as "auto-posting" (which in practiceanything but automatic), which comes after the information has been kept secret for 25 years. However, information may be released sooner if it is marked with an earlier publication date; if the original classification authority that classified the information, its successor or supervisor, or other designated official, determines that it no longer meets the classification standards; or when the head of the agency or a designated senior official determines that the public interest in disclosure outweighs the need for protection. The decision to publish is made in consultation with all departments that have an interest in the information.
Information marked as restricted data or previously restricted data is subject to separate rules. Bystatute, Restricted data can only be released by authorized officials of the Department of Energy. Although the law is less clear on this point, it has consistently been interpreted as granting the Departments of Energy and Defense the exclusive power to release previously blocked data, an interpretation enshrined in the agency.regulations. No category is eligible for “automatic” disqualification.
Like classification, declassification is a two-step process. First, an authorized employee must determine that the information no longer needs to be protected. Secondly, this decision must be communicated for the protection to be lifted. So if a decision is made to release information, it should be marked as released. If the disclosure affects an entire category of information, the agency's classification guidance should be updated accordingly. If it is more stringent, the decision may be recorded in a decommissioning guide, although often the consultation process that accompanies a decommissioning decision is sufficient to alert the necessary personnel.
Where are all these rules laid out?
Classification and disqualification rules are largely set out in presidential decrees, along withregulationsissued by the Information Security Supervision Office, an office within the National Archives and Records Administration, to implement these orders. Most presidents have issued their own executive orders on classification since the modern classification system began in the 1940s. Trump was an exception and did not issue orders on the matter. President Biden has yet to issue an executive order on the classification (although there is areportsthat one is in progress), then this is the currently valid orderthe one issued by President Obama in 2009.
However, as mentioned above, there are separate rules for classifying and declassifying core information. These rules are in theAtomgesetzand implementationregulationsIssued by the Department of Energy.
Does the president have authority to release information?
Yes and no.
In most cases, classification and declassification is an exercise of the President's authority under Article II of the Constitution to protect national security information. By order of the Executive Branch, the President has delegated this authority to other members of the Executive Branch (originally senior officials, the Information Security Oversight Office, etc.), but it is essentially a Presidential authority that the President can exercise personally.
However, there are exceptions. The Constitution also grants Congress significant powers over national security. In areas where the President and Congress share power, Congress may choose to legislate in a way that limits the President's authority. For example, because Congress has determined that only the Department of Energy can release certain nuclear information, the President does not have the authority to do so.
Notably, some of the documents the FBI recovered from Mar-a-Lago had previously restricted data classification labels. Previously restricted datacan includeInformation about the size of nuclear stockpiles, current and past locations of nuclear weapons, information about weapons production (ie how powerful they are), and the results of tests above or below ground. with long standinginterpretationsof the Atomic Energy Act, only the Department of Energy and the Department of Defense can release such information.
Furthermore, it is important to understand the constitutional authority of the president in this context. Under Article II, the president is responsible for passing judgment on violations of national security. When a president determines that classified information can be removed without endangering national security, or that the public interest in disclosure outweighs the harm, he makes that judgment. On the other hand, if a president changes the classification status of a document for some other reason, for example, he would feel more comfortable working from home than in a secure facility, or simply has not taken the necessary security measures, such an act it is arguably a waiver, not an exercise of, their responsibilities under Article II.
Can the president release information without following the rules?
This depends on who you ask.
The rules for disqualification are set out in apresidential decreemiapplication rules. These regulations have the force of law, i. h are binding on all who evaluate or disclose information. Of course, a president who wants to change his mandate has a tool ready: he can simply revoke or revise the order. In that sense, a president is not really "bound" by an executive order. However, while this order remains in effect, respect for the rule of law suggests that you must comply.
The government sees it differently. During the administration of President George W. Bush, the Department of Justice issued a classified legal memo stating that presidents are not required to comply with executive orders and that if they do not comply with an executive order, they are simply "fired"' or ' Modify'. “That for your actions. In addition, the memorandum does not require that the public be notified of the waiver/amendment. If the essence of the notewent public- thanks to the efforts of Sen. Sheldon Whitehouse (D-RI) - has been widely criticized, but there is no public indication that it has been withdrawn.
One thing the president cannot do, however, is downgrade the information "thinking about it," that is, without communicating that decision to anyone else. This conclusion does not follow from any specific legal requirement, but from the essence of what it means to classify or disclose information. As mentioned above, these are two-step processes: first, an employee determines if the information should be protected, and second, the information is flagged to ensure protections are applied or removed. When an employee claims to have classified or disclosed information after taking the first step but not the second, it's like a customer saying that he ordered food at a restaurant despite having decided what to do. He wants to eat but hasn't told the waiter. .
Why does it matter if Trump actually declassified the documents in question?
NO! The legal issue currently before the court is whether Justice Department officials can be prevented from reviewing the seized documents and using them in their criminal investigations until special counsel can determine whether any of them are private documents about Trump that should be returned. . The district court judge issued such a ban, but a three-judge panel (including two Trump appointees) of the Court of Appeals for the Eleventh Circuit did.you kept your decisionapplied to 100 documents with classification labels. As recognized by the Court of Appeals, the executive order allows original classification authorities to classify information only if it is "owned, created by, or prepared by or under the control of the United States government." By definition, this is government information, not private paper. Subsequent declassification does not change the origin of the information.
The non-disclosure status of the documents is also unrelated to Trump's criminal liability. The Department of Justice haspublicly quotedthree criminal laws that can be applied in this investigation. None of them require information that must be classified. The most serious chargeespionage law, criminalizes the misuse of information “related to national defense”. Judges generally view the classification as strong evidence that the information relates to national defense. However, unclassified or declassified information may still qualify, particularly if the declassification was completely outside the usual process and did not require consultation with the relevant authorities about the national security implications of the release.