Could Donald Trump Actually Have Declassified the Documents? – According to a recently released audio recording, obtained by CNN and other media outlets last week, former President Donald Trump acknowledged in a 2021 meeting that he had retained “secret” military information that he had not declassified.
“As president, I could have declassified, but now I can’t,” Trump said, according to the transcript. The former president was reported to be discussing a classified Pentagon document about attacking Iran.
The tape and transcript were released after Trump was indicted on Thursday on seven counts in special counsel Jack Smith’s investigation into the mishandling of classified documents. However, as details from the indictment have yet to be made public, it remains unclear whether any of the seven counts actually referred to the recorded 2021 meeting.
A federal grand jury voted to indict the former president, and it comes after more than 100 documents with classified markings were found at Trump’s Mar-a-Lago resort in August 2022.
It has been noted that the transcript captured Trump explicitly stating that he had not declassified the documents and could no longer do so – even as the former president has made public claims to the contrary.
Could the Documents Have Been Declassified?
Trump had also told Fox News host last year, “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.”
National security legal experts have since dismissed the notion that documents can be declassified simply by a president “thinking about it,” but the American Bar Association Legal Fact Check did explain that there are legal guidelines that support Trump’s contention that presidents do in fact have broad authority to formally declassify most documents that are not statutorily protected.
“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,” the American Bar Association also noted.
It further explained that some secrets – such as information related to nuclear weapons – would be handled separately under a specific statutory scheme that Congress has adopted under the Atomic Energy Act. Such secrets cannot be automatically declassified by the president, and those require, by law, extensive consultation with executive branch agencies.
Three Strikes for Donald Trump?
Politifact also highlight that three cases suggested that Trump’s argument that he had broad powers to declassify the documents could be challenged.
The first was “James Madison Project v. U.S. Department of Justice,” which involved media outlets suing to secure an unredacted version of Justice Department applications to surveil Carter Page, a one-time Trump associate. The DoJ argued that some parts of the application were classified and therefore could not be released under the Freedom of Information Act. However, news organizations contended that a September 2018 press release from then-White House Press Secretary Sarah Huckabee Sanders said Trump had “directed” the declassification of the Page warrants.
In his decision rejecting the media outlets’ right to the unredacted document, U.S. District Judge Amit P. Mehta concluded that a White House “press release was not a declassification order,” noted Politifact.
The second case was New York Times and Matthew Rosenberg v. Central Intelligence Agency. In that case, the paper of record, using a Freedom of Information Act request, sought acknowledgment and documents from the CIA about the existence of a covert program for arming and training rebel forces in Syria.
“The Second Circuit affirmed the district court’s grant of summary judgment in favor of the CIA. After according appropriate deference to the uniquely executive purview of national security, the court held that President Donald Trump’s statements, even when coupled with General Raymond (Tony) Thomas’s statements, left lingering doubts and thus were insufficient to amount to an official acknowledgment of the alleged covert program in Syria, much less the existence of records related to the program. The court stated that it is still logical or plausible that disclosing the existence or nonexistence of an intelligence interest in such a program would reveal something not already officially acknowledged and thereby harm national security interests,” the Justia Opinion Summary stated.
The third case, Leopold v. Department of Justice, involved Jason Leopold, then a journalist with BuzzFeed, who brought a Freedom of Information Act case seeking documents related to the Mueller investigation. Trump posted to Twitter that he had declassified the documents related to the investigation, but the government countered that the tweets were not “self-executing.” District Court Judge Reggie Walton ordered the Justice Department to secure a declaration from Trump or a close associate about what his intent was in sending those tweets, Politifact also reported.
Another consideration isn’t just that the documents may have been classified. Other laws, notably the Presidential Records Act, mandate that all government documents, whether classified or not, be returned to the National Archives and Records Administration (NARA) after he left office.
“The PRA changed the legal ownership of the official records of the President from private to public, and established a new statutory structure under which Presidents, and subsequently NARA, must manage the records of their Administrations,” NARA also states on its website.
The National Archives further has pushed back on claims made by Trump and his legal team that he had two years to go through the documents to determine what was personal and what was presidential.
Moreover, while past presidents have notified NARA of plans to build a presidential library, where such documents could be archived, Trump never did so.
“Prior to the end of his administration, President Trump did not communicate any intent to NARA with regard to funding, building, endowing, and donating a Presidential Library to NARA under the Presidential Libraries Act,” the National Archives said in its statement. “Accordingly, the Trump Presidential records have been and continue to be maintained by NARA in the Washington, DC, area, and there was no reason for NARA to consider a temporary facility in Florida or elsewhere.”
Author Experience and Expertise
A Senior Editor for 19FortyFive, Peter Suciu is a Michigan-based writer. He has contributed to more than four dozen magazines, newspapers, and websites with over 3,200 published pieces over a twenty-year career in journalism. He regularly writes about military hardware, firearms history, cybersecurity, politics, and international affairs. Peter is also a Contributing Writer for Forbes and Clearance Jobs. You can follow him on Twitter: @PeterSuciu.