Tue. Oct 4th, 2022

The legal and political battles over the search of former President Trump’s Florida residence this week are just beginning, and among the questions to be settled are those revolving around the classified documents he is alleged to have taken with him from the White House to Mar-a-Lago. 

FBI agents seized 11 sets of documents from Trump’s Palm Beach club on Monday, including documents  identified as “Various classified/TS/SCI documents,” according to the inventory unsealed Friday. The list of items taken also notes that agents carted away four sets of documents marked “top-secret,” three sets of documents marked “secret” and three sets documents marked “confidential.”

These sets of documents range in classification levels, depending on the degree of their significance to U.S. national security. According to the federal regulations governing classification, “confidential” denotes the lowest rung. Information at this level could, if wrongly disclosed, cause “identifiable damage” to national security.  “The next level, “secret” information, could cause serious damage to national security if wrongly disclosed. The “top secret” designation is reserved for material whose unauthorized disclosure could cause “exceptionally grave damage” to national security.

The “SCI” designation is an abbreviation for “Sensitive Compartmented Information” and refers to classified information involving sensitive intelligence sources, methods or analytical processes, and which can only be discussed within a “SCIF” — a “Sensitive Compartmented Information Facility” — a secure room or building limited to government officials with a corresponding security clearance. 

After news of the search emerged, the former president claimed in a post Friday on Truth Social that the material “was all declassified.” In the coming weeks, that claim will likely be evaluated by the government, and possibly, the courts. It’s not clear how much information the public will have about how it unfolds. 

As for the president’s power to declassify materials, here’s some background on how it works, according to current and former intelligence officials familiar with the declassification process.

First, a U.S. president does have uniquely sweeping declassification abilities, though there is a process that involves written documentation and several other steps.

It’s not the case that a president can declassify documents with just verbal instructions. His instruction to declassify a given document would first be memorialized in a written memo, usually drafted by White House counsel, which he would then sign.

Typically, the leadership of the agency or agencies with equities in the document would be consulted and given an opportunity to provide their views on the declassification decision. As the ultimate declassification authority, however, the president can decide to override any objections they raise.

Once a final decision is made, and the relevant agency receives the president’s signed memo, the physical document in question would be marked — the old classification level would be crossed out — and the document would then be stamped, “Declassified on X date” by the agency in question.

Former Trump administration officials have claimed that Trump previously declassified the documents taken with him to Mar-a-Lago, but that the classification markings had not been updated.

“The White House counsel failed to generate the paperwork to change the classification markings, but that doesn’t mean the information wasn’t declassified,” former Trump defense official Kash Patel told Breitbart in May, regarding other material that had earlier been removed from Mar-a-Lago. “I was there with President Trump when he said ‘We are declassifying this information.'”

Courts may ultimately have to decide how sweeping a sitting president’s declassification powers can be. But U.S. officials familiar with the classification process to date point out that, unless and until the documents are stamped “Declassified” by the requisite agency, and following the submission of a written memo signed by the president, they have historically not been considered declassified.

It is also unclear how central a legal question the classification process and the president’s role in it could be. As the New York Times points out, none of the statutes cited in the warrant rely on whether the records were classified or not. The search warrant signed by the Florida magistrate judge entails items “illegally possessed in violation of 18 U.S.C. § § 793, 2071, or 1519.” 

That first code, Section 793, and more commonly known as the Espionage Act, applies to defense information. It applies, for instance, to material illegally removed “from its proper place of custody” or that is lost, stolen or destroyed.

The next statute, Section 2071, bans concealing, removing, mutilating or destroying records filed with U.S. courts. And the final one, Section 1519, prohibits concealing, destroying or mutilating records to obstruct or influence an investigation.



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