I get your point but I am not sure about it. But I agree it is a distinction without a difference whether the President has a clearance or not. Certainly his position authorizes him to see any classified information he wants/needs. But I don’t think his position allows him to violate rules/laws. After all the courts have certainly held that laws apply to a sitting President. As for regulations, I agree he can change them, but I don’t see how he can simply ignore them. Given a properly marked classified document, I don’t think the President can just take it home and leave it lying around. Unless he changes the regulations. Which he can do. But he has to do that. If he doesn’t take out a sharpie and change the regs, he can’t violate the regulations which have the force of law. Basically this is a clash between the legal reality that classification authority rests solely with the President and the regulations that codify what classification means. Is document classification simply whatever the President says it is, or is it the set of legal regulations established under the authority of the President. Prior to Trump this hasn’t been a problem. With Trump, everything is a problem.
It certainly doesn’t allow him to violate laws.
That’s the whole thing, though. The regulations simply don’t apply to the President. He’s not “violating” them because they don’t regulate his actions.
Yes. It’s both. But, again, those legal regulations simply don’t apply to the President.
I’m not entirely sure it’s never been a problem prior to Trump’s presidency, but otherwise, yeah, I’d agree. But this is Factual Questions, and to the best of my understanding, the factual matter is that if President Trump authorized the transfer of classified documents to his personal residence and their storage there, no laws or legal regulations on the handling of classified documents have actually been broken.
I gather that Gdave is saying that since he is President, he doesn’t have to abide by regulations or procedures. I guess I understand that, the office of the President is established by the constitution as a co-equal branch of Government, but I don’t see how it follows. We agree that congress passes laws and our government is a nation of laws and even the President can’t ignore the law. It is after all in his constitutionally mandated oath. What is the logical path that says the President doesn’t have to follow regulations? I get that he can change regulations, but if he doesn’t change the regulation, doesn’t he have to follow it? Does saying to himself “I want to do this” constitute changing a regulation? Especially since the regulations are enforceable under the law.
Perhaps it comes down to: did Trump explicitly authorize the transfer of the classified documents to his residence? We agree that he could have done that. Whether he did so, especially did he do so in writing, is one question.
Retaining marked classified documents in his residence is certainly against the law. He is no longer President. He can’t ignore the existing regulations now. I don’t see how his past self could authorize his present self to ignore the regulations.
Side Note: I’m confused as to why you’re not replying to me or directly addressing me, and are instead referring to me in the third person.
Main Note:
The regulations under discussion regulate the actions of individuals with security clearances who have signed non-disclosure agreements. They simply don’t apply to the President. I’ll leave it to a constitutional scholar to weigh in on whether a President can even meaningfully bind his own actions with regulations.
Those regulations also don’t apply to Members of Congress, who as elected Constitutional officials don’t fall under the clearance program. They also don’t apply to ordinary citizens. The Espionage Act of 1917 potentially would, but the enforcement of that act has been haphazard at best, and doesn’t really cover simple mis-handling or improper storage of classified information.
This is exactly what it comes down to. If he did so, no laws have been broken. If he didn’t, whoever transferred those documents almost certainly broke the law.
If, while he was President, authorized the transfer and storage of those documents at his residence, then the transfer and storage were and are by definition legal. The regulations still don’t apply to him, because he doesn’t have a clearance and ever signed an NDA. The President authorized transfer of those documents to that location. There’s no automagical take-backsies once he leaves office. Once he authorizes their transfer and storage at that location, it would take Presidential action to change that.
Depending on who had access to the documents after Donald Trump left office, he might be liable under the 1917 Espionage Act, but that seems like a real stretch. The laws he pretty clearly seems to be in violation of are on government records retention, not classified document handling.
I can understand to a certain degree that the president can authorize moving around of classified documents; but there has to be some procedure for doing so and bounds within he/she must act? Could the POTUS authorize and order all documents related to North Korea to be stored under the table at his favorite booth at McDonald’s? Wouldn’t someone have to know that he told the maid to move all of Putin’s records to his own personal boat?
And do all those POTUS authorizations need to be documented, or can he/she just say “oh yeah I said that was ok” years later when someone asks questions? Or make up a story like “Yes I authorized Ivanka to move the first 10 boxes, but I didn’t authorize Rudy to move the other 5 boxes so better go get him” with no actual paper trail confirming?
And, after the term ends, what is the procedure for all the unsecure and/or now-inappropriate storage locations like his personal bedroom or under that McDonalds table? If the locations and moves were documented, does someone have to review the list and determine of they can remain? If they weren’t documented, how does anyone know that the JFK files were given to a golfing buddy to make a really good movie out of later? Also, how did the National archives know he had stuff in Mar-a-lago, and did they politely ask the front desk guy to give it back, or did they kick the door down and take it all?
On preview I see part of the above has been answered by the “no magical take-backsies” answer. Surely there must be some bounds to this… like on Jan 19 the former POTUS authorizes himself or cleared staff to publish all kinds of sensitive national security stuff on his personal website. It really has to stay there until the new POTUS does something about it?
Gdave,
thanks for explaining things so well.
I have been replying third person because the replies are part of the thread and presumably of general interest. But a direct reply is more appropriate.
I hadn’t thought of signing the NDA. It has been so long ago that I simply forgot about that step. 
If the President doesn’t agree to follow the regulations by signing an NDA then he doesn’t have to. I don’t know whether Presidents are even asked to. It wouldn’t make any difference if they chose not to at least during their term.
I think the congressional exceptions are different. I agree congress people don’t have to get a clearance to see classified documents, but equally not all congress people can see any documents they want. Cite: the house and senate intelligence committees. They see things other congress people simply aren’t allowed to know. But the decision of who gets that access are made the congressional leadership not by the administration.
For the President personally? No, not really. The entire security clearance and classified information regulatory system is a matter of Presidential discretion. There simply aren’t any laws regulating the President’s actions in this area.*
Yes.
No.
There don’t need to be document authorizations. It sure seems like it would be a good idea if you were given such orders to try to insist on such documentation, to cover yourself, but the President really does have pretty much absolute discretion, and the laws don’t require him to formally document everything. I suppose there might be some administrative procedure laws around official government document transport and storage that might have been violated if the move wasn’t properly documented - I know very little about that area of the law. But that would be an issue with government records, not classified documents per se.
Well, there’s the rub. There are laws on retention of government records, and those boxes at Mar-a-Lago do seem to be in violation of those laws. All of those documents should have been turned over to the National Archives once Donald Trump was no longer President. But that’s because they were government records, not because they were classified, per se. From what I’ve read, most of those documents actually weren’t classified, but they all should have been handed over.
Yep. Again, the President really does have pretty much absolute discretion on what information should be classified and how to handle, store, and disseminate it.
*At the extreme, treason could come into play, and slightly less extreme, bribery laws and the emoluments clause, but that’s about it.
Well, thank you for the thanks 
.
Yes, that’s my understanding as well.