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    October 24, 2022 Top Legal News of the Week

    Fact check explores presidential authority to declassify

    More than two months after FBI agents seized boxes of materials at former President Donald Trump’s Florida residence, known as Mar-a-Lago, the federal investigation continues amid conflicting legal interpretations of a president’s authority to declassify sensitive information.

    The federal classification of national security documents is used to control how officials handle information whose release may cause the nation harm.

    The federal classification of national security documents is used to control how officials handle information whose release may cause the nation harm.

    Getty Images / Mario Tama

    Trump added to the confusion when he said in an interview with Fox personality Sean Hannity, “There doesn’t have to be a process, as I understand it. ... If you’re the president of the United States, you can declassify just by saying it’s declassified. Even by thinking about it.”

    Most national security legal experts dismissed the former president’s suggestion that he could declassify documents simply by thinking about it. But as an ABA Legal Fact Check posted Oct. 17 explains, legal guidelines support his contention that presidents have broad authority to formally declassify most documents that are not statutorily protected, while they are in office.

    The system of classifying national security documents is largely a bureaucratic process used by the federal government to control how executive branch officials handle information, whose release could cause the country harm. The government has, however, prosecuted cases for both mistaken and deliberate mishandling of information. Under the U.S. Constitution, the president as commander in chief is given broad powers to classify and declassify such information, often through use of executive orders.

    Some secrets, such as information related to nuclear weapons, are handled separately under a specific statutory scheme that Congress has adopted under the Atomic Energy Act. Those secrets cannot be automatically declassified by the president alone and require, by law, extensive consultation with executive branch agencies.

    In all cases, however, a formal procedure is required so governmental agencies know with certainty what has been declassified and decisions memorialized. A federal appeals court in a 2020 Freedom of Information Act case, New York Times v. CIA, underscored that point: “Declassification cannot occur unless designated officials follow specified procedures,” the court said.

    As the new ABA Legal Fact Check notes, the extent of a president’s legal authority to unilaterally declassify materials — without following formal procedures — has yet to be challenged in court.

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