Thanks for the cite.
Did Biden follow the established procedures to declassify the documents in question, or did he just take them home?
Obviously, we don’t know at this point. I guess that’s one thing the investigation will look into.
Yes, that’s part of the special prosecutor’s job.
I don’t think there’s going to be any satisfying answers because, like so many things the Trump presidency exposed, the normal rules break down when the person violating them is the President.
Let’s say you know a piece of information that’s classified, say, the maximum range of the new Boeing HELLYEET missile system. If the president wanted to declassify this information, he could instruct the heads of his intelligence agencies to do so; they would file the appropriate paperwork, and eventually you may have, in your hands, a document indicating that the information relating to this missile system, including the maximum range, is declassified.
But I’m of the opinion that the information is actually declassified as soon as the original classification authority says it is. If Biden holds a press conference and publicly announces the existence of the HELLYEET and declares for all to see that the specs are now declassified, including its maximum range, I don’t see how anyone could convict you for sharing that information after that point, even if there’s a breakdown in the filing of the “official” declassification paperwork.
This means, to me, that yes, Trump could declassify things just by thinking about it. The reason this scenario, or my HELLYEET one above, isn’t spelled out in more detail anywhere is because they’re both stupid, and nobody involved in the entire classification process anticipated Presidents declassifying things on a whim.
And to the OP, yes, Biden could claim that they were declassified via some mechanism. I guess he hasn’t because he’s not a stable genius like Trump. And since he hasn’t said the magic words… he’s guilty!
These guys are morons and we really don’t need to give their opinions much heed.
If a President is above the law and can do anything, then Joe Biden could have Donald Trump arrested tomorrow and lock him up in Guantanamo (sharing a cell with George W. Bush).
The reality is that Presidents are subject to the law just like everyone else. The law may give a President the power to declassify documents while he’s in office but that President still has to follow the procedure described by the law. If a President “declassifies” a document by thinking about it and then stores it in his mansion, then the document is still classified and he’s breaking the law.
The good news is that means locking Trump up in a cell is still on the table.
But classification is not proscribed by the law, it’s executive branch policy.
No, there’s the Espionage Act (18 U.S.C. § 798) which authorizes the classification of material and makes it illegal to release classified material. That was enacted by Congress back in 1917. There have been several laws since then, also enacted by Congress, which authorize the classification and/or declassification of material.
And do those laws proscribe the methodologies by which something is classified and declassified?
The process is codified and empowered by Executive Order, which of course leads to the issue you alluded to above: the authority over all classification is derived from the power of the Executive office, so what do you do when the Executive breaks the rules?
I think the answer has to lie in the fact that the power lies in the office, not the man. However improper his actions would be were he anyone else, Trump’s actions regarding the documents in question while he was in office are by definition above reproach.
However, the documents are still “official records,” and they have always been the rightful property of the government regardless of classification and were never anyone else’s to possess, even Trump once he was no longer President.
Or maybe I’m wrong about all that, but I am required to complete very long and very tedious training about properly handing “official records” every year, and even in my lowly government position I am expected to save everything.
Sure. But the constitution really only gives us one recourse when the President does something that’s “above reproach” but not illegal, and that’s impeachment. So here we are, dealing with a scenario that we have little resolution for because nobody anticipated anything so batshit as a president “declassifying things by thinking about it.”
Because the laws are based on how to handle documents with classification markings, and the actual contents don’t matter.
The information may be declassified, and you may have documents detailing all the same info as the documents marked classified, but because those documents are marked classified, they are still to be treated as classified documents.
If someone stops being president, it doesn’t matter what they declassified in their head, or even what they sent through the proper channels. The documents that are marked classified are no longer under their authority to treat as they wish.
And yet we have many recourses for someone who is no longer president who is breaking the law. It’s not how he handled the documents while he was president, but how he handled them after that is at issue here.
Cite?
eta: It’s certainly true that the subpoena that Trump violated was for documents with classification markings, not for classified information, and the distinction matters there. But I don’t think your assertation that documents with classified markings are the same as classified information passes the sniff test – I could, for instance, print up a cookie recipe with classified markings and hand it out to all my friends, and I assure you I’d be violating no laws.
I’m also not saying that Trump did no wrong, but trying to stay focused to the topic of the thread and it’s philosophical and/or practical implications – if information is declassified by the president but the president’s chain of command fails to follow the procedures (dictated by the executive branch) for updating their own records regarding the classification of that information, is that information still classified?
Unfortunately, it is a tangle of several EOs as well as legislation and precedent, much of which has already been pointed out in this and related threads and affirmed by people who work with classified information for a living. So, if you are asking for the specific line that states that, then there’s not much I can do for you.
Otherwise, I’d have to track down and cite several sources that have already been discussed in this and related threads.
So, before I even consider doing so, are you actually asking for a cite that it is illegal to improperly handle documents with classified markings?
The espionage act makes it illegal to improperly handle information that is considered to be national defense information, and a series of executive orders affirm that documents with classified markings hold NDI in them.
To do otherwise would require that documents are examined in order to tell whether or not they are sensitive to the security of our country, which would defeat the whole point.
This gets into a lot of it. Other posters who have personal experience with classified material may be a better source.
The subpoena was for documents that belonged to the government, some of which were classified. Whether or not they were illegally retained wasn’t because they were classified, it was because they were improperly removed and should be returned.
The fact that they were classified makes it more of a deal, but it’s not the reason that NARA asked for their property back. It doesn’t matter if Trump “declassified them with his mind” or not. They were the property of the President’s office, not his.
I didn’t make that assertion.
Assuming that you are not someone with authority to classify documents, then probably not. I’m not sure if there is any sort of penalty for misusing classified markings, but I’m sure that if you actually made them look substantially the same, you’d get a talking to be some serious looking people in business suits.
I’m not sure how that would play out, and I don’t think you’d want to find out.
Once again, you are asking the wrong question, and it comes back to the documents. The documents with classified markings are to be treated as classified. It doesn’t matter if the actual information in them is or not.
Plus, some level of documentation has to take place to change the status. If he doesn’t have to tell anyone that a document is declassified, that also means that he can retroactively declassify anything he wants to, and claim he thought about it while in office. If there is no record outside of his mind that this action took place, are you seriously considering humoring it?
And, once again, it doesn’t matter if they were classified, or if the information was classified, as they did not belong to Trump. They belonged to the office of the president, so the moment Trump was no longer president, he no longer had legal possession of them.
Now, maybe Trump could have made an EO that changed classification procedures, or granted him ownership of those documents, but he did not do that. And as ridiculous as declassifying in his mind is, EO by mind is even more so.
raises hand
See, I have worked with classified documents for a living, and while my experience was rather mundane, I spent 13 years getting annual training on how to handle classified documents.
Well I think you’re wrong, based, again, on my experience. If you can point to a specific law that makes it illegal to mishandle information marked classified regardless of the contents, I’ll eat my hat and confess that I was mistaken. But a general waves hand at information that has been posted isn’t gonna cut it for me, especially as I’ve spent much of this news topic trying to correct misinformation about classified material handling here on the dope that has muddied an already muddy topic.
True
False. The executive orders and various agency guidance on how to properly label and handle classified information do not state that “documents with classified markings hold NDI in them.”
The point is to make life easier for people who regularly handle classified materials. But whether or not stuff is properly marked does not make a difference in terms of the risk to national security.
Again, raises hand.
I agree with all of this, of course. That’s not the discussion the OP suggests we have, though.
Case in point: Trump had empty folders with classification markings on them, and nobody is making a big deal out of them except for concerns about what might have happened to the missing contents.
Then I will give your views significantly more weight than I have been. I am operating off of impressions given by my readings here, as well as from the video I linked to above. I am at this point more curious as to what and where I’ve gone wrong in my impressions than trying to argue them.
I won’t ask you to watch the whole thing, even though I think it’s worthwhile, but I will give a couple of timestamps and pseudo transcribe what I think is important, and see where that gets us.
At 5:30, he talks about how the espionage act is codified under 18 USC 793, and lists crimes involving information related to national defense. He points out that the act is badly written, and doesn’t actually ever use the term National Defense Information, stuff that is harmful to the US. He then goes on to point out that the courts have done most of the defining since, requiring it to be “closely held” and defining what that means.
At around 7:20, he points to the fact that to be considered under the Espionage act, it has to be “actively withheld”, which is the reason for the classification system. So that makes classification markings “circumstantial evidence that a document is closely held”. He says, “In other words, you classify NDI, and classification markings indicate that it’s NDI.” He does say you don’t need classification markings to make something NDI, it’s just useful.
At 9:15, he talks about unauthorized possession of NDI (subsection e of the espionage act). He says that if you have unauthorized possession of NDI, it is a crime to retain it or give it to anyone not authorized to receive it. He uses the example that if you find a folder marked “Top Secret” on the D.C. subway, you should take it to the nearest FBI audience, no peeking. (From that aspect, it seems as though if your cookie recipe has proper classified markings on it, I wouldn’t be allowed to look inside to make sure that they are actually cookie recipes and not nuclear codes.)
As I said, most of this seems to be built on court rulings interpreting the Espionage act and various executive orders, so it’s not nearly so straightforward as a specific piece of legislation. Which is of course why this issue isn’t straightforward with Trump’s handling of documents.
So, for the first question, can a president declassify documents with his mind? I really don’t think so. There has to be some paper trail or evidence that he declassified the documents while president. Whether he waves it at a news camera or follows the guidelines set up for the process doesn’t matter, what matters is proof it was done while in office.
To the second question as to whether possession of documents that are marked classified, but no longer contain classified information by someone no longer authorized to possess classified information, I am less sure than I was, but I think that’s mostly because no one has really done that before, and so it’s not really clear how the law will or should treat it.
I would like your opinion, based on training and experience. If I am walking through the halls of congress, and I see a folder marked “Top Secret” on the floor, if I pick it up, look in it, and see it’s actually just your cookie recipe, have I committed any crime?
As stated in the video, classification markings are considered “circumstantial evidence” that it is NDI. Can you answer either how that is wrong, or how your statement squares with it?
I’ve never said that it is a different risk to national security. What I have been saying is that it is a different risk to your individual criminal record.
And so I am giving your position a great deal of weight. Now, the problem is that it’s really hard to cite, but I do remember that in threads about the documents in Trump’s possession, it was pointed out that there is a process to declassifying a specific document, and until that is done, it is still to be treated as classified, but that was more of a sidebar, as opposed to this thread dedicated to the topic. My understanding was that a government employee could get in trouble for not treating it correctly, even if the info in it were no longer classified. Were you aware of or a participant in any of those discussions? If so, what am I getting wrong about that position?
Eh, probably just cookie recipes.
I think this is good advice. I haven’t watched the video yet, but based on previous Legal Eagle videos I’ve watched with Spencer, he’s dealt with cases involving classified materials but has not worked in a classified environment himself. He’s also a lawyer, so “Don’t open the folder” seems like pretty safe legal advice. But more on this later.
It would certainly help his case, but ultimately it would be up to a jury whether or not they buy it. This would all be moot if he were still president when the documents were found, but since he wasn’t, he has to pretend like he declassified them when he was. (Note: he hasn’t actually claimed to have declassified anything, just insisted that he could).
But I’m of the opinion that as soon as the president (or any original classification authority) gives a legal order to classify or declassify something, be it out loud or in an email, the thing is classified or declassified immediately.
I’m sure there are lots of WWII era documents on the internet that have been declassified but still bear their original classification markings. For instance, here is a formerly classified document posted by the Smithsonian. It is properly marked (maybe, it should have a matching SECRET stamp at the bottom, but either it’s cut off or that rule didn’t exist back then). You can print this out and do whatever you want with it. It’s declassified.
The short answer is no. You are not holding any classified information. This is functionally no different from picking up a manila folder with a cookie recipe inside. Keep it, throw it out, it doesn’t matter. It’s an inanimate carbon rod.
Now… Spencer’s advice is smart. You should not open it. But you haven’t committed a crime in doing so, just taken a dumb risk. (I’m also fairly certain that nobody would prosecute if you opened it, saw classified documents, and immediately turned them in. But this is speculation).
Now x2… as a courtesy, even if I did open it to find an unclas cookie recipe inside, I would find a security manager and turn it in, as a courtesy. It’s an indication that someone may be sloppy in their handling of sensitive info. But depending on the situation, they might not even look into it.
Smelling weed inside a car is circumstantial evidence of possession, but if a search turns up nothing there’s no crime. Which is to say, we all operate under the assumption that something with classification markings is classified until we investigate further. If that further investigation yields a mislabeled cookie recipe… no foul.
I don’t remember that thread but I think this is good advice and it’s how I would operate. If the original classification authority gives a lawful order to declassify something, I’m going to treat it as classified until all the Ts are crossed and Is are dotted, just to C my A. If I didn’t, I may even “get in trouble” with my immediately supervisor, who would probably feel the same way. I don’t think anything worse would happen, though.
Oh I like this argument =) That should explode a few GOP heads if it is pointed out to them =)
Problem is, when on declassifies documents, there is paperwork that has to be done to accomplish this - and even the president has to do the frelling paperwork =) The document package ends up with more sheets of paper added, and stampings on the original one.
I believe the moral of that cartoon is: any bird you can shoot multiple times at point blank range and not kill it is a bird you don’t want to fuck with.