The country is focused on the Jan. 6 committee’s criminal referral of former President Trump to the Department of Justice (DOJ) for four alleged crimes, including inciting and abetting an insurrection. But Trump’s decision to stash classified documents at his Mar-a-Lago residence continues to be investigated by DOJ. Although not rising to the level of insurrection, the possible crime of mishandling defense information and obstructing their lawful recovery deserves greater congressional attention.
Initially, Trump and some of his supporters claimed that, as president, he had declassified the documents, and, hence, they were his to keep. Putting aside whether keeping the documents, declassified or not, is a violation of presidential records law (which it most likely is), some commentators have dismissed the notion that the president could have in fact declassified the documents.
Lacking any written record, the former president’s claim is seen as typical Trump — just winging it when it comes to asserting presidential powers. That none of his lawyers have advanced this argument in court reaffirms the opinion of most that it should not be taken seriously.
But it would be wrong to simply dismiss Trump’s assertion, and it is an issue that is in danger of falling through the cracks. Presidents have long claimed the authority to classify materials by dint of the president being the nation’s chief executive and commander in chief — the only official vested under Article II of the Constitution with “the executive power.”
Any other official involved in classifying materials does so, it is argued, because the president has delegated that authority to that official. And because the president has the underlying power to classify, he has by implication the unilateral authority to declassify.
Unwittingly, with Trump’s irresponsible claims, the former president has brought to light a long-standing problem with presidents asserting the unilateral right to declassify information with no apparent oversight. It’s a problem Congress should address by regularizing through law the process by which secret information and materials are declassified.
Under Article 1, Section 8, Clause 18 of the Constitution, Congress is given the power “To make all Laws, which shall be necessary and proper for carrying into Execution” both Congress’s own enumerated authorities but also “all other Powers vested” in the government. Although Congress cannot pass a measure that would undermine the president’s core authority to classify and declassify, from the first Congress on, the legislative branch has exercised its power to give form and regularity to the president’s specific authorities.
Some might argue that such form already exists in the various executive orders that presidents have issued over the past half-century that spell out in detail how the classification system is supposed to work, including the process for declassifying. But an executive order is just that — a presidential directive that any president can ultimately ignore.
The statute governing the president’s authority to initiate a covert action program would be a model for congressional regulation of the classification system. That law (50 U.S. Code §3093) doesn’t preclude the president from authorizing covert programs and operations but does require the president to make a formal finding regarding their necessity and to share this finding with Congress before executing the decision to proceed. This law also gives the president authority to act in extraordinary situations, with the proviso that a more limited number of House and Senate leaders (the so-called “Gang of Eight”) be informed.
As for the details of declassifying secret information, the law could essentially incorporate the regulations set out in the relevant executive order (# 13526). So framed, a White House would be hard-pressed to argue that it infringes in any substantive way on the president’s claimed authority.
What such a law would do, however, is create a norm that future presidents might be more reluctant to ignore if it put them at odds with a congressional reporting requirement. It wouldn’t necessarily prevent a future president from abusing his authority, but it would likely complicate it, as White House advisers and lawyers remind the occupant of the Oval Office that there might be a price to be paid with Congress and the public in so acting.
Former President Trump’s claim that “if you’re the president of the United States, you can declassify just by saying ‘it’s declassified’ — even by thinking about it” can be easily dismissed as typical bloviating. But even if Trump never makes it back to the Oval Office, the threat that legitimate executive authority can be abused remains. As such, the former president has done the country a favor. He has reminded Congress that it cannot depend solely on the good judgment of a president and that passing a law to guide the exercise of this core executive power is needed now.
Gary Schmitt is a senior fellow at the American Enterprise Institute. Henry Sokolski is the executive director of the Nonproliferation Policy Education Center.