The President Can Declassify Documents
Yes, the president can declassify documents, and there isn’t a set protocol they have to follow
https://www.verifythis.com/video/news/verify/government-verify/the-president-can-declassify-documents-but-there-are-protocols/536-cab184f1-5177-4735-b63e-edb966dc91b8
Former President Trump claimed documents found at Mar-a-Lago were “all declassified.” We explain why sitting presidents can declassify documents and how it works.
FBI agents took 11 sets of classified records from former President Donald Trump’s Mar-a-Lago estate during a search on Aug. 8, court records revealed.
In a post on Truth Social, his social media platform, Trump later claimed that the documents were “all declassified.” Kash Patel, who served as chief of staff for the acting defense secretary during the Trump administration, also claimed that Trump had declassified the documents. John Soloman also was involved in the declasification of the documents and was working with Patel in negotiations with NARA to return documents that President Trump didn’t need,
While it still may not be legal for Trump to possess declassified documents from his presidency, many VERIFY readers, including Beverly and Carole, asked whether the president can declassify documents while in office.
This photo was staged and photographed by the FBI.
Notice the ‘evidence card on the floor “2A”
THE QUESTION
Can the president declassify documents?
THE SOURCES
Department of the Navy v. Egan, 484 U.S. 518 (1988)
Department of the Navy v. Egan
https://supreme.justia.com/cases/federal/us/484/518/#tab-opinion-1957333
The President Executive Order 13526
https://www.archives.gov/isoo/policy-documents/cnsi-eo.html#three
Kel McClanahan, executive director of the National Security Counselors, a nonprofit public interest law firm
Richard Immerman, Edward J. Buthusiem Family Distinguished Faculty Fellow in History at Temple University
https://cases.justia.com/federal/appellate-courts/ca2/18-2112/18-2112-2020-07-09.pdf?ts=1594303207
THE ANSWER
Yes, the president can declassify documents while in office, but there isn’t a set protocol they have to follow.
WHAT WE FOUND
The U.S. classification system has three levels: top secret, secret and confidential.
“That is based on the level of damage that its release would cause to the national security of the United States,” Kel McClanahan, executive director of the National Security Counselors, said. “When you classify a document, that means that only people with a security clearance equal to the classification or higher can read it.”
A sitting U.S. president has wide-ranging authority to classify and declassify certain documents, but former presidents do not have authority over classification and declassification.
Current presidents can classify documents as long as they can “make a plausible argument that it is related to national security.” On the other hand, the president “doesn’t have to give any reason for declassifying” information, according to McClanahan.
“He can just say, ‘I decide that this should be declassified,’ and it’s declassified,” McClanahan said.
A 2009 executive order directs the head of a government agency that originally deemed information classified to oversee its declassification, and sets some rules for that process. But those protocols outlined in the executive order don’t apply to the president, McClanahan said.
However, presidents generally follow an informal protocol when declassifying documents, Richard Immerman, a historian and professor at Temple University, told VERIFY.
First, the president will consult all departments and agencies that have an interest in a classified document. Those departments or agencies then provide their assessment as to whether the document should stay classified for national security reasons. If there is a dispute among the agencies, they debate, but the president ultimately makes the decision on declassification, Immerman explained.
When documents are declassified, they are reviewed line-by-line. In many cases, certain words, sentences and paragraphs remain redacted, even if the document is declassified, Immerman said.
The Supreme Court determined in its 1988 decision on Department of the Navy v. Egan that the president’s power over classified information comes from executive authority granted by Article II, Section 2 of the U.S. Constitution, which says, in part, that the “President shall be Commander in Chief of the Army and Navy of the United States.”
“His authority to classify and control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position in the Executive Branch that will give that person access to such information flows primarily from this constitutional investment of power in the President, and exists quite apart from any explicit congressional grant,” the Supreme Court decision reads.
Though there aren’t specific protocols that the president must follow to declassify a document, federal courts have ruled that they will “refuse to recognize what they consider to be an inference of declassification,” McClanahan said.
The U.S. Second Circuit Court of Appeals wrote in a 2020 decision about whether statements made by then-President Trump declassified the existence of a CIA program that “declassification, even by the president, must follow established procedures.”
If a document is declassified, that doesn’t automatically mean it can be shared widely, either. For example, nuclear information – which is generally classified – is also protected by the federal Atomic Energy Act of 1954, McClanahan explained.
The General Services Administration (GSA)
Presidential Transition
“The Congress declares it to be the purpose of this Act to promote the orderly transfer of the executive power in connection with the expiration of the term of office of the President and the inauguration of a new President.”
The transfer of power from one administration to the next marks a significant moment in U.S. history. The Presidential Transition Acts of 1963 and 2015 give the General Services Administration (GSA) a prominent role in this process. They authorize the Administrator of GSA to provide the President-elect and the Vice-President-elect the services and facilities needed to assume their official duties.
Presidential Records
Presidential records are defined as "documentary materials, or any reasonably segregable portion thereof, created or received by the President, his immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise and assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory or other official or ceremonial duties of the President…" (44 U.S.C. 2201(2).) These records can be in a variety of formats, including paper documents, photographs, motion picture film, tape recordings and electronic records. Presidential records are governed by the Presidential Records Act and are not subject to the Federal Records Act.
Federal Records
The National Archives and Records Management Administration (NARA) guide, Documenting Your Public Service, provides high-level Government officials with basic information to enable them to distinguish Federal records from other documentary materials, including personal files.
TRANSITION SUPPORT
The General Services Administration (GSA) plays an important role in Presidential Transition, including providing a variety of services needed to help them assume their official duties. To facilitate this process GSA has assembled a number of teams:
Incoming Presidential Transition Team
Inaugural Team
Internal GSA Transition Team
Outgoing Administration Team
https://www.gsa.gov/governmentwide-initiatives/presidential-transition