How you declassify a document: Presidential edition
At former President Trump’s speech Tuesday evening in Florida, after he returned from his arraignment in New York, he said: “As President, I have the right to declassify documents. And the process is automatic, if I take them with me, it’s automatic.”
I spent 19 years working for the federal government on classification and declassification policy, including over 7 years on the National Security Council (NSC) staff in the office that handles these matters for the NSC and the White House, and 11 years working at the Information Security Oversight Office (ISOO), which is the office in the National Archives and Records Administration (National Archives) that oversees classification and declassification for the whole executive branch.
For clarity let’s discuss how documents/information can be declassified:
First, information is classified and declassified, not documents.
The governmental interest in classifying something rests on protecting the information regardless of the medium by which that information is conveyed.
When a decision is made to classify something it is to prevent a foreign government or actor (such as a terrorist organization or individual) from knowing that information.
This means in essence a decision to declassify information in one document (or other medium) would declassify that same information anywhere else…other documents, recordings, databases, etc. It also means that the declassified information would be authorized to be shared in conversations in unsecured environments and/or with those that do not have the required security clearances.
If we give former President Trump the benefit of the doubt that he meant information, when he said documents, let’s look at how information can be declassified.
The national security classification and declassification system is established by Executive Order 13526 (EO 13526). (Note: There is also some nuclear information that is classified under the Atomic Energy Act of 1954, as amended. Atomic Energy Act classifications are Restricted Data (RD) and Formerly Restricted Data (FRD) and we will deal with them in a later article.)
Executive Orders are issued by presidents as instructions to the executive branch to manage the executive branch.
Because the national security classification and declassification system is established by Executive Order rather than law, it means:
The legislative and judicial branches are not governed by EO 13526, as they are not governed by any Executive Orders. Information the executive branch shares with the legislative or judicial branches is maintained classified only out of courtesy and a shared interest in protecting national security. There can also be agreements that the legislative and judicial branches enter into with the executive branch about protecting classified information, but in most cases these other branches are very protective of their independent co-equal status, so they are reluctant to sign such agreements.
The current president has authority on their own to change any Executive Order or direct actions that supersede an Executive Order, such as deciding to declassify specific information or all information in a set of material.
So a current president does have the authority to declassify any information classified under Executive Order 13526.
Such a decision, however, must be documented and communicated to others in the US government that have access to that information, in order to:
Prevent government waste of resources resulting from that information being stored under the costly conditions that classified material are required to be stored.
In FY 2016, the last year that cost data was collected and published, the executive branch spent $2.63 billion on just physical security for classified information.
For comparison the executive branch spent only $102.58 million on declassification in FY 2016.
Protect the US from a situation where information restrictions prevent the US government from adequately responding to a national security threat.
Part of the tragedy that the 9/11 Commission identified is that information restrictions inhibited the US government from identifying the hijackers in time to stop them (see page 417 of the 9/11 Commission Report).
A fundamental principle of the current US classification system is to classify information at the lowest level possible to protect it and to declassify it as soon as it doesn’t meet the standards for classification.
“If there is significant doubt about the need to classify information, it shall not be classified.”
“If there is significant doubt about the appropriate level of classification, it shall be classified at the lower level.”
“Information shall be declassified as soon as it no longer meets the standards for classification under this order."
This principle and these rules are not always achieved in practice as some institutional cultures within the government have not adjusted to current policy. That said, as president, if Trump were to declassify information for the governmental purpose that “he felt it no longer met the standards of classification” or that “he felt a governmental purpose was better achieved by declassifying it”, then documenting and communicating that decision to others with access to the information is a vital step in achieving that governmental purpose.
Ensure that decision is carried out by others.
When information in a document is declassified the document itself needs to be marked, so that anyone encountering the document knows how to handle the material.
The Code of Federal Regulations (CFR) governs this, specifically 32 CFR 2001.25:
“(a) A uniform security classification system requires that standard markings be applied to declassified information. Except in extraordinary circumstances, or as
approved by the Director of ISOO, the marking of declassified information shall not deviate from the following prescribed formats. If declassification markings cannot be affixed to specific information or materials, the originator shall provide holders or recipients of the information with written instructions for marking the
information. Markings shall be uniformly and conspicuously applied to leave no doubt about the declassified status of the information and who authorized the declassification.
(b) The following markings shall be applied to records, or copies of records, regardless of media:
(1) The word, ‘‘Declassified;’’
(2) The identity of the declassification authority, by name and position, or by personal identifier, or the title and date of the declassification guide. If the identity of the declassification authority must be protected, a personal identifier may be used or the information may be retained in agency files.
(3) The date of declassification; and
(4) The overall classification markings that appear on the cover page or first page shall be lined with an ‘‘X’’ or straight line. An example might appear as:SECRET
Declassified by David Smith, Chief, Division 5, August 17, 2008”
One of the requirements in 32 CFR 2001.25 is a date of declassification. For Trump to have declassified information the date would have needed to be before Trump’s term expired.
Also note a presidential transition is not an extraordinary circumstance, but a standard event known well in advance that is done under a high degree of government planning.
The type of exceptions that might be approved to marking a document is if a bulk declassification is done of a large volume of material. For example, it could be approved that the boxes containing the material are marked declassified or a letter stating an entire box has been declassified is placed in the box. These provisions can be approved to be used until the contents of a box need to be accessed, at which point the individual documents are marked declassified. This is a tool that might be used to reduce the use of government resources to mark each document until a box is accessed.
Again all of this is focused on marking and communicating the declassification decision. There has been no indication that any such markings existed on the documents retrieved from Mar-a-Lago.
EO 13526 Section 3.1(b) states:
“(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.”
EO 13526 Section 1.3 states:
“Classification Authority. (a) The authority to classify information originally may be exercised only by:
(1) the President and the Vice President;
(2) agency heads and officials designated by the President; and
(3) United States Government officials delegated this authority pursuant
to paragraph (c) of this section.”
Trump, when he was president, had the authority to declassify any information and all he needed to do was mark the documents or direct a staffer in the executive branch to do so in writing. So far no evidence has been presented that he did so.
But is it automatically declassified if the president “takes it with them”?
First, there is a provision in EO 13526 for “automatic declassification,” but this for documents marked at creation with a date or event that they will be automatically declassified.
EO 13526 Section 1.5(a) and (b):
“(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.”
It would be easy to prove and end the investigation if all the documents found at Mar-a-Lago had marked on them a declassification event such as “end of President Trump’s term in office.” It would be very unusual for this type of event to be marked on a document and given the investigation is still going on it is reasonably likely that no such date was marked on the documents.
Second, we can rule out the physical movement of documents having any bearing on their classification status. Presidents and their staff, like many other executive branch officials, transport classified material all the time. The movement of classified material never changes its classification status. Some of the most guarded classified information in the US, such as the intelligence community produced President’s Daily Brief (PDB), can be taken to and with the president while the president travels. It still maintains its classification when it moves with the president.
Third, if he meant that to “take them when I left office” is the “take them with me” in “the process is automatic, if I take them with me, it’s automatic,” then a decision to declassify it is required to have been made while he was still president. He loses the authority to declassify it the moment his term ends. At that point he is just like any other citizen, who can request a document be declassified and released through a Mandatory Declassification Review (MDR) or a Freedom of Information Act (FOIA) request. He does, however, have one special power that continues after he leaves office:
EO 13526 Section 4.4 states:
“Access by Historical Researchers and Certain Former Government Personnel.
(a) The requirement in section 4.1(a)(3) of this order that access to classified information may be granted only to individuals who have a need-to-know the information may be waived for persons who:
(1) are engaged in historical research projects;
(2) previously have occupied senior policy-making positions to which they were appointed or designated by the President or the Vice President; or
(3) served as President or Vice President.
(b) Waivers under this section may be granted only if the agency head or senior agency official of the originating agency:
(1) determines in writing that access is consistent with the interest of the national security;
(2) takes appropriate steps to protect classified information from unauthorized disclosure or compromise, and ensures that the information is safeguarded in a manner consistent with this order; and
(3) limits the access granted to former Presidential appointees or designees and Vice Presidential appointees or designees to items that the person originated, reviewed, signed, or received while serving as a Presidential or Vice Presidential appointee or designee.”
So a former president can access their former files if it is approved in writing and appropriate steps are taken to protect the classified material. Therefore, if former President Trump had wanted to access any of the materials he took to Mar-a-Lago, there was a way to do it that would not have caused the FBI to go to Mar-a-Lago to seize them. Presidents often use Section 4.4 as they draft their memoirs.
