Standing order to declassify?

The Trump Raid story now has a new twist. President Trump now claims he issued a standing order to declassify automatically any document he took to the residential quarters. Naturally people outside the White House are tying to dispute that. But in fact Trump relies on two Executive Orders, including one from Barack Obama himself, that he (Trump) never rescinded. Those two E.O.s say essentially that the President (and Vice-President) may declassify what they please, how they please. And some of the same people who excused this in Obama, now want to prosecute Trump for it. Let them try. And then let them defend selective application of the law, which defines their philosophy of law.

Assertion of the standing order

Trump himself asserted the standing order after the Trump raid warrant and property list came out. Again, here it is.

Notice Listings 10A, 11A, 13A, and 14A, for “Miscellaneous Documents” having one of the three designations for classified material. They are, for everyone’s information, Confidential, Secret, and Top Secret. But the only way the FBI knows to call them that, is by reading markings on them.

Well, according to the standing order, those markings don’t mean a thing. Trump spells it out in a statement he gave to John Solomon, owner-publisher of Just the News. The Western Journal has the statement in full:

As we can all relate to, everyone ends up having to bring home their work from time to time. American presidents are no different. President Trump, in order to prepare the work the next day, often took documents including classified documents to the residence. He had a standing order that documents removed from the Oval Office and taken to the residence were deemed to be declassified the moment he removed them.

The power to classify and declassify documents rests solely with the president of the United States. The idea that some paper-pushing bureaucrat with classification authority delegated by the president needs to approve the declassification is absurd.

Support for the standing order

Two former officials – who, for whatever reason, feel they must state this anonymously – back this up. If Trump wanted to preserve any given document as classified, he wouldn’t take it to the residential quarters. He would give it back to the Staff Secretary or intelligence official who provided it. One of them said in answer to the question of a standing order to declassify,

I don’t know anyone or anything that disputes that.

In what could be the strongest defense of the authority of a President to issue such a standing order, other anonymous sources who worked for previous administrations said that sort of thing went on all the time. Earlier Presidents have shared Top Secret information on-the-fly with foreign leaders, or with staff who were not then cleared to see or handle Top Secret material. All these sources agreed that a President’s authority to declassify or downgrade documents was absolute, and none could gainsay him.

Anyone in government other than the President and Vice-President must follow a strict procedure for safeguarding, declassifying, or downgrading classified information. Executive Order 13526 lays out that policy – but exempts the sitting President and Vice-President from it.

E.O. 13526 also governs marking of classified information. But because it exempts the President and Vice-President, those officers don’t even have to follow the marking convention. E.O. 13526 superseded another Executive Order that George W. Bush issued in 2003. But Trump never revoked E.O. 13526. So its terms still apply.

Objections

Bradley P. Moss is a partner in the Mark S. Zaid law firm, specializing in national security matters. For all his expertise, he tries to cast doubt on a President’s un-gainsay-able authority to declassify or downgrade information. (To downgrade means to reduce a classification to a lower grade without declassifying it entirely. “Top Secret” to “Secret” or “Confidential,” or “Secret” to “Confidential,” are the possible downgrades.)

Mike Davis once clerked for Justice Neil Gorsuch of the U.S. Supreme Court. On August 11, Davis reminded everyone that Presidents may declassify as they please. “The Supreme Court reaffirmed this in 1987,” he said, citing Department of the Navy v. Egan, 484 U.S. 518, 1988.

At 3:14 p.m. EST Friday, Bradley Moss flew into that precedent’s face.

For those in the back who have not been listening, let me say this one last time. Declassification had to be done and completed for each individual document before noon on 1/2/2021.

No indication Trump made sure that was done for these docs. [An oral] statement is not enough.

Trump’s Friday evening statement about having issued a standing order for declassification clearly rocked him. In outrage, he tweeted:

It. Does. Not. Work. This. Way.

In addition, Maggie Halberman of The New York Times alleged that she had asked a former “senior administration official” about the standing order.

And they had absolutely no idea what this report is talking about.

From a Member of Congress

Rep. Jim Himes (D-Conn.-4th) sits on the House Intelligence Committee. Clearly the notion of a standing order from Trump to declassify what he took to a residence rocked him, too. “Baloney!” he cried, to MSNBC. Again, he appeared to be quoting Executive Order 13526, but forgetting that the order exempts the President and Vice-President.

Of course, he’s going to say that because it creates a little bit of confusion and throws a bit of mud into the water. But I can tell you as someone who also sees the most sensitive information this country has, that’s utter baloney.

No, you cannot, Representative Himes—or at least, not with any justice. You are not the President, and you have never been the President.

If anyone here is throwing mud into the water, then it is Representative Himes and Attorney Bradley Moss. Each man needs to re-read Executive Order 13526 and the bound opinion in Department of the Navy v. Egan. While they’re at it, let them re-read Mike Davis’ short course on Presidential authority to declassify information:

Among other things, Davis reminded everyone that the federal courts have no personal jurisdiction over Presidents regarding the Espionage Act.

Conclusion

CNAV sees no legitimate basis for a prosecution of Trump under the Espionage Act or the Presidential Records Act. This relevant paragraph from Executive Order 13526 says it all:

Information originated by the incumbent President or the incumbent Vice President; the incumbent President’s White House Staff or the incumbent Vice President’s Staff; committees, commissions, or boards appointed by the incumbent President; or other entities within the Executive Office of the President that solely advise and assist the incumbent President is exempted from the provisions of paragraph (a) of this section.

Furthermore, no one ever prosecuted Hillary Clinton for having an email server in the bathroom of her private residence. This while she carried on sensitive conversations using that server. To prosecute Trump after failing to prosecute Hillary would constitute selective application of the law. Any jury would nullify that in a trice. Or if they didn’t, the Supreme Court eventually would.

CNAV invites Representative Himes, Lawyer Moss, or Reporter Halberman, if they wish to dispute the conclusions CNAV has reached, to leave comments. Of course, doing so leaves them open to cross-examination, including by CNAV contributors who actually practice law.