The Washington PostDemocracy Dies in Darkness

If Trump did ‘declassify’ records (he didn’t), it would be no less damning

His nonsensical claim is a bit like the Twinkie defense — at best it would mean he put his convenience above risks to national security

A page from the Justice Department's response to the Trump legal team's request for a special master to review the documents seized in the Aug. 8 search of Mar-a-Lago. (Jon Elswick/AP)

There are so many holes in former president Donald Trump’s claim that he declassified the documents confiscated by the FBI during its Aug. 8 search of Mar-a-Lago that it’s hard to keep track. The latest came Wednesday night, when Trump’s own lawyers agreed with the Justice Department that if a special master were appointed to review the seized materials, that person should have a top secret/SCI security clearance: If Trump’s declassification claim were correct, why the need for a special master to have that clearance? Equally significant is that none of the three federal crimes that formed the basis for the search — Espionage Act violations, mishandling of government records and obstruction of justice — turn on the documents’ classification status. So the declassification issue is the reddest of red herrings: It’s as factually implausible as it is legally irrelevant.

But there’s one more problem with Trump’s argument that these rebuttals don’t fully capture. Even if it were accurate and relevant, it would be no less damning as an indictment of the former president.

The U.S. has no rules for when the president is a national security threat

Although the concept of national security secrets goes back to the nation’s founding, the formal legal rules for “classification” date only to the aftermath of World War II. This is partly why the Espionage Act, enacted in 1917, refers to the broader and more amorphous category of “information relating to the national defense.” The modern classification system was created in a September 1951 executive order signed by President Harry Truman. In that order, and in the numerous amendments that have followed, the core principle has always been the same: The purposes of national security classification are “to protect the national security of the United States” and “to establish a system for the safeguarding of official information the unauthorized disclosure of which would or could harm, tend to impair, or otherwise threaten the security of the nation.” The most recent classification order, signed by President Barack Obama in 2009, endorses a similar view: “Throughout our history, the national defense has required that certain information be maintained in confidence in order to protect our citizens, our democratic institutions, our homeland security, and our interactions with foreign nations.”

In other words, national security classification does not just have bureaucratic utility; it reflects the concern that allowing certain information into the public domain could pose grave risks to the safety and security of Americans and our allies. Yes, there are long-running and entirely justified concerns about over-classification — and about the public’s difficulties in accessing information that should be available. But no one seriously disputes that the government needs to keep at least some information properly classified, and that declassification should be based at least in part on an assessment of the risks (or lack thereof) of publicizing the material.

Against that backdrop, consider Trump’s “I declassified them” defense — and note what’s missing from it. In the various forms and forums in which he has made it, he has never said that he declassified the materials because he was concerned about over-classification. Nor has he suggested that he declassified them because, although they were properly classified in the first place, his judgment was that the information ought to be in the public domain. Nor has he argued that the materials did not meet the relevant classification criteria — perhaps because they revealed misconduct or malfeasance by other government officers. Trump’s argument is far less sophisticated than any of these. His claim is that he had a “standing order” (for which there is no evidence) that everything he took with him to his private residence was automatically declassified, regardless of what it was.

Trump’s supporters seem to think that, once again, the president has outfoxed his critics. But imagine for a moment that such an order existed (it doesn’t), whether or not it’s relevant to Trump’s potential legal liability (it isn’t). That would mean that Trump declassified some of our most sensitive national security secrets not because he wanted the public to know about them, and not because he thought they were wrongly classified; he did it — if he did it — because he was lazy. In this scenario — this defense, such as it might be — he wanted to make it easier to take what might be the crown jewels of our national security state back and forth with him without having to do what every other government official does; that is, use a “secure compartmentalized information facility,” or SCIF. Secret technology that we don’t want to share with China? Too bad. Human intelligence that could be used to smoke out American agents in foreign governments? Not his problem. Specific details about the deployment of U.S. troops overseas? Whatever.

If Trump is charged, it should be for the worst of his crimes

Trump’s “defense” would mean that he committed what would have to be the most stunning and indefensible systematic breach of our national security not just by any president in American history, but perhaps by any person. Edward Snowden and Chelsea Manning may be responsible for putting a greater number of government secrets into the public domain, but they at least had substantive reasons for doing so — whether or not we agree with them. In Trump’s version of events, breaching our national security and potentially exposing secrets happened simply because he couldn’t be bothered to handle classified information correctly. It’s not quite the “Twinkie defense,” the standard for wildly improbable justifications for improper behavior, but it’s not far off.

In a better-functioning system, such a wholesale and unspecific declassification of national security secrets would be impeachable. For the moment, we’re stuck with the hope that it will at least have political consequences for Trump should he choose to run for the presidency again in 2024. After all, when the best argument Trump can muster for why he didn’t commit multiple felonies in bringing these materials to Mar-a-Lago is that his convenience was more important than the nation’s security, that ought to be disqualifying — especially if it’s true.

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