Can a President “think” a document declassified? Can he “tweet” a document declassified?
One of the main excuses Trump and his partisans have offered for his troubles in the Mar-a-Lago investigation is that he had already declassified all documents that were recovered by the FBI—by simply decreeing them so, by waving a magic wand, as it were.
No harm, no foul, right?
It turns out that this is not how it works—and judges have repeatedly ruled on this point during Trump’s term. A President’s order to declassify a document is not “self-executing”, they have said; you still need to follow the relevant agencies’ processes before a document is considered declassified. But it isn’t only judges. In all these cases, members of Trump’s own administration came forward to clarify that Trump did not really mean to declassify documents even though some have interpreted his statements that way.
To be clear, since none of the statutes listed in the warrant turn on whether the documents were classified, their classification status is a side issue anyway. And even if the documents had been declassified, they are still US government property that belong at the Archives, not at a former government employee’s private golf resort. Further, if indeed Trump had declassified these records before he walked out the door, the sheer recklessness of exposing these national security “crown jewels” would have been a massive scandal on its own.
But leave aside those objections. Honing in on just whether Trump actually did declassify these documents before he left the White House—what are we to make of these claims?
Evolution of the claim
The first time we heard such a claim was on May 5, 2022. Ex-Trump staffer Kash Patel claimed to Breitbart News that despite what the Archives had publicly said about the documents found at Mar-a-Lago having classified markings, the documents were, in fact, declassified. He claimed that just before Trump left office, he had declassified “whole sets of documents” but the White House Counsel’s office had failed to remove the markings. Regardless, in spirit, as it were, the documents had been declassified. Still, he refused to name them, for fear that he would be blamed for revealing classified info.
On Jun 22, 2022, he continued this double-speak of simultaneously claiming that Trump had already declassified the documents, and also that they still needed to be declassified. He went on a Christian show called His Glory to announce that he had been appointed Trump’s representative to NARA (hat tip: Gal Suburban); on that basis, he was going to “march down there” and identify all documents “they” had blocked from being declassified, because Trump had already declassified them.
This time, he did describe the sort of documents that were at issue: primarily the set that he has been trying to expose since 2017, when he was a Devin Nunes staffer—documents related to the investigation into the Trump campaign’s links with Russia, that Trump has dubbed “RussiaGate”.
Then his claims got more expansive. On August 14, he went on Maria Bartiromo’s show (hat tip Acyn) and said that since the President is the unilateral authority over classification, he can “literally stand over a set of documents and say that these are declassified immediately”.
He referred to two times Trump had waved such a magic wand: a Trump tweet from October 6, 2020, where he says, “I have fully authorized the total Declassification of any & all documents pertaining to the single greatest political CRIME in American History, the Russia Hoax,” and, a Trump memo from January 19, 2021, where he declares he is declassifying a binder of Crossfire Hurricane documents (minus redactions).
On July 19 and July 20, Mark Meadows and Tom Fitton (hat tip: Gal Suburban) made back-to-back appearances on John Solomon’s show. In his last days in office, they said, Trump had demanded a sweeping declassification of documents pertaining to the Russia investigation. However, DOJ had flinched due to privacy concerns, so were asked to make redactions. Up until the end of his term, they had not acted on the order. That sounds like the declassification did not actually happen, hence, is irrelevant: however, Meadows claims, at minute 1:10, that in fact, just by virtue of Trump issuing the command, the documents were instantly declassified.
Meadows was referencing the same Trump memo of January 19 that Kash Patel referenced, regarding the declassification of a binder of documents pertaining to the Russia investigation (nicknamed Crossfire Hurricane). In it, Trump says that he accepts the redactions that the FBI wants to make, but the rest of the material is “hereby declassified”. As we know, neither the FBI nor DOJ went on to make any such redactions.
On August 8, Mar-a-Lago was searched, and a further 27 boxes recovered.
A few days later, on August 12, John Solomon read a statement from Trump (hat tip: Acyn) that made the most sweeping version of the declassified claim: it said that Trump had a standing order that all documents that he took home were deemed to be declassified. Experts have called this claim “preposterous“. Indeed, absolutely no record of such a sweeping standing order has been found: neither a memo, nor a tweet, nor even any staffer who remembers any such order.
Trump’s legal team have made their own version of this argument by pointing at a President’s absolute authority to declassify documents. On May 25, Trump attorney Evan Corcoran offered this as a defense in a letter to DOJ. Up until August 26, his lawyer Alina Habba was still pointing to a President’s theoretical ability to declassify documents as a sort of defense.
However, what the legal team has not claimed is that he actually did declassify any of the documents that were found at Mar-a-Lago. In DOJ’s August 30 response to their request for a special master, they make a special note of that: neither in January, when 15 boxes were returned, nor in June when a “sheaf” of documents were returned, nor at the time of the August 8 search, have the attorneys ever mentioned that any of these particular documents were declassified.
Why, then, do they keep bringing up a President’s theoretical authority to declassify, considering that Trump hasn’t had this power for 19 months? Short of suggesting an ability to retroactively bless documents with the Magic Wand, the theoretical authority is irrelevant. But, my guess is that they want to hint at it without outright saying it.
The magic wand
It is important to note that this Magic Wand theory of declassification—where declassification is a fait accompli the instant a President demands it—was a brand new theory posited by Kash Patel, John Solomon, and Mark Meadows for the first time in the Spring of 2022. In the previous year, Patel and Meadows had expressed regret that Trump had in fact not been able to declassify key Russia investigation documents before he walked out the door.
Kash Patel gave an interview to Real Clear Investigations in February, 2021. In it, he expressed regret that in his last days, Trump “relented to US intelligence leaders,” allowing them to block the release of material. Mark Meadows’s book detailing his time in the White House came out in December 2021. In it, he describes the flurry of the last days, as he and Trump went through documents page-by-page to determine what to declassify, and sent it to the DOJ minutes before Biden would become President. DOJ failed to act on it.
Neither of them gave any hint that they thought the declassification had already happened by virtue of command, or they would have started putting out that formerly-secret material on public websites, as Kash Patel intended to do.
What changed? What changed is that by early 2022, the Archives had notified the Justice Department about the classified material found at Mar-a-Lago. It grew abundantly clear by the next few months that Trump might be culpable for holding on to contraband material after he left office; and possibly one of these acolytes for viewing them while not having a security clearance.
Clearly they thought the Magic Wand of Presidential Declassification would exculpate them; perhaps not understanding that the statutes DOJ would go on to list in order to obtain their search warrant do not hinge on classification status.
What courts have said
It turns out that Trump has repeatedly, and erratically, tried to expose “RussiaGate” records at a regular clip throughout his Presidency. What his tweeted decrees actually mean has also been tested by the courts. National security attorney Bradley Moss was recently on Preet Bharara’s podcast Stay Tuned and spoke about these cases; in each that he mentioned, judges ruled that a President’s statements about declassification were not self-executing, and in order for the documents to actually be declassified, regular procedures had to be followed.
What are those? Well, classification isn’t a matter of pure thought. Based on a memorialized order to declassify, the agencies with stake in the document would cross out the old markings and stamp it with its new level of classification, date, etc. If those steps aren’t followed, the document is not declassified.
US District Court Judge Reggie Walton, 10/21/2020 (ruling described): The most recent such ruling was about that same pair of October 6, 2020 Trump tweets that Kash Patel referenced on Maria Bartiromo’s show. In these tweets, Trump not only authorized the declassification of all Russia investigation documents, but also suggested that they had already been declassified.
Jason Leopold, then at Buzzfeed, immediately filed a motion to have the court order the release of all information pertaining to the Russia investigation still under wraps. Within a couple weeks, the judge had already ruled, based on a declaration from Chief of Staff Mark Meadows, and the matter was put to rest. The tweets “were not self-executing declassification orders,” Mark Meadows declared, after consulting with Trump. They were merely a reiteration of a 2019 letter wherein he had authorized AG Bill Barr to make declassification determinations.
US District Court Judge Amit Mehta, 3/3/2020 (ruling): Those October 6, 2020 tweets, however, were just the capstone on a years-long saga of Trump announcing the release of Russia-related intel, while being thwarted again and again by his own administration. Another long-running case had focused on the FISA warrant for Carter Page.
In June of 2018, DOJ released a heavily redacted version of the 412-page warrant, itself an unprecedented step. The redactions did not satisfy members of Trump’s party—who were certain the black bands hid some explosive information. The demands to expose it all continued. Then, on September 17, Trump’s Press Secretary released a statement stating clearly that Trump had directed the release of 21 pages of the warrant that had been blacked out. Sounds like a declassification order!
It didn’t count, the judge ruled. Just as with the October 6 tweets, a member of Trump’s own administration said that Trump’s White House statement was vaporware, without necessarily using those words. Associate Deputy Attorney General G. Bradley Weinsheimer declared that they had consulted with the White House, and there was no order to declassify those 21 pages at that time. As with his October 6 tweets, his 2019 order to authorize Bill Barr to make declassification determinations was still operative with no change.
Chief Judge Katzman, Judge Walker and Judge Park, 7/9/2020 (ruling): In yet another case, Trump had inadvertently divulged details of a covert CIA program in Syria. Did that mean it was henceforth declassified? No, the judge ruled, in words that are an on-the-nose refutation of the Magic Wand theory: “Declassification, even by the President, must follow established procedures.”
Judges have not been asked to rule on the last minute January 19 memo from Trump that “hereby declassifies” everything in a certain binder, minus redactions. But the same principle applies: the declassification procedure actually has to be followed to be real.
As Bradley Moss told me on email: “there is no indication the order [in the January 19 memo] was ever implemented. And even if Trump were to argue he is not bound by procedures, that would necessarily mean President Biden now has that same authority and could have reclassified everything.”
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