When Donald Trump was president, he had a simple understanding of the declassification process for U.S. secrets, which boiled down to this: As the commander in chief, he was also the “declassifier in chief.”
This is relevant again after the FBI’s Aug. 8 search of Trump’s Mar-a-Lago estate in Palm Beach County, Florida. In a statement on his Truth Social platform, Trump insisted the documents seized by FBI agents were “all declassified.” And the documents were “in secured storage, with an additional lock put on as per their request,” Trump said about his team’s previous interactions with federal authorities over documents.
The FBI “didn’t need to ‘seize’ anything,” Trump asserted. “They could have had it any time they wanted.”
This goes back to Trump’s declassification philosophy, such as it was, when he was president. A Trump tweet from Aug. 30, 2019, exemplified this approach to declassification.
After a failed Iranian test launch of a Safir missile, Trump was provided classified overhead imagery showing the explosion of the missile on the launch pad as part of his regular intelligence briefing.
“We had this image of the Iranian missile blown up, and it was exquisite intelligence, and he didn’t even wait,” a former senior U.S. intelligence official told NBC News. “As soon as we showed him, he said, ‘Hey, I’m tweeting this.’”
The problem, from a national security standpoint, is that the image was from one of America’s “premier spy satellites,” according to NBC, “with resolution far superior to anything on the commercial market.”
When top intelligence officials, including then-CIA Director Gina Haspel, argued that releasing the photo would reveal capabilities the Iranians and the rest of the world didn’t know the United States possessed, Trump was said to be unpersuaded.
“Look, I’m the president. I can declassify anything,” he reportedly said.
Trump is correct that the president has broad declassification authority. But it’s not unlimited, and there’s a process that’s followed to ensure sensitive information isn’t revealed, such as the identities of U.S. spies, active covert operations, or intelligence shared by an allied nation.
When the president orders photos, documents, or other intelligence to be declassified, it is first scrubbed by the intelligence community to redact any clues that could reveal sources and methods before it is made public.
Secrets about U.S. nuclear weapons, including their status, location, and operational plans, are typically classified at the highest level, “TS/SCI” for top secret/sensitive compartmented information, and can be declassified only under the most extraordinary circumstances.
Not only must nuclear secrets be kept under the tightest security, but they must be handled only in a “SCIF,” or sensitive compartmented information facility — a room that is protected against eavesdropping, surveillance, theft, and unauthorized access.
As for documents Trump may have improperly kept at his Florida home when he was no longer president, the Justice Department contends it was stymied in its requests to get them back. Attorney General Merrick Garland said he personally approved the application for the search warrant only after the FBI exhausted “less intrusive means.”
The FBI search of Trump’s Mar-a-Lago home turned up 11 sets of documents marked “confidential,” “classified,” “secret,” or “top secret,” with some carrying the super-secret TS/SCI designation.
Since then, Trump lawyers, and in some cases surrogates, have offered other novel defenses for Trump’s retention of classified documents that are, by law, government property and should reside in the National Archives and Records Administration.
Reading a statement purportedly from Trump’s office on Fox News, journalist John Solomon said the former president was claiming to have issued a “standing order” designed to facilitate him working from the residential area of the White House.
“As we can all relate to, everyone ends up having to bring home their work from time to time. American presidents are no different. President Trump, in order to prepare for work the next day, often took documents including classified documents from the Oval Office to the residence,” the statement said. “He had a standing order that documents removed from the Oval Office and taken into the residence were deemed to be declassified.”
So far, no one who worked in the Trump White House has corroborated Trump’s assertion of a blanket declassification of documents.
“There was no standing order,” former Trump national security adviser John Bolton said. “I never heard of it, never saw it in operation, never knew anything about it. The president never said anything to me during my 17 months there. I just think it’s complete fiction.”
“Moreover, if this existed, there had to be some way to memorialize it. The White House counsel had to write it down,” Bolton said on CNN. “Otherwise, how would people throughout the government know what to declassify?”
The laws cited in the government’s request for a search warrant do not address whether the documents were appropriately declassified or whether there was any intent to distribute the information. Rather they focus on the possession, storage, and handling of the documents.
“Cases where individuals obtain classified information illegally and released it illegally are different than what this case might be,” said Mark Zaid, a Washington defense attorney specializing in national security cases.
The century-old Espionage Act contains a provision cited in the Mar-a-Lago search warrant that makes illegal the willful retention of national defense information that “the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation” and “fails to deliver it on demand to the officer or employee of the United States entitled to receive it.”
“It’s important to understand there doesn’t have to be any intent or allegation that the president or those around him we’re going to sell the information or leak it to the right-wing media, left-wing media, or a foreign power,” Zaid said in an MSNBC interview. “Possession of that information in a location where they are not authorized to have it is just as sufficient.”
“Three years ago, a former NSA contractor was sentenced to nine years in prison for having a horde of classified documents in his home that as far as I understand was never intended to ever leave that residence,” Zaid said, noting that, unlike Trump, the contractor was not someone with declassification authority.
“There are some defenses without a doubt that Trump and his lawyers will raise primarily because the statutes in question were never intended or envisioned to be operable against the president of the United States,” Zaid said. “So sometimes there are references to executive branch employees or officers and the debate will be, ‘Does that include the president of the United States?’”
Jamie McIntyre is the Washington Examiner’s senior writer on defense and national security. His morning newsletter, “Jamie McIntyre’s Daily on Defense,” is free and available by email subscription at dailyondefense.com.
