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Part of the problem with this is legal case is that with a few (largely nuclear-related) exceptions, all classification guidance exists in the form of Executive Orders. The current guidance is EO 13526 from 2010, but that revoked and replaced a whole list of orders from previous administrations dating back to Harry Truman. So if the question is "could Trump have declassified this?", he could have declassified (almost) everything by mere a executive order revoking 13526 without replacement. In addition, the EO 13526 explicitly designates the President (and Vice President) as a "classification authority" able to determine classification.
But what constitutes an executive order? In general, the separate powers of the US federal government are given broad leeway to determine their own rules and procedures (see Noel Canning, which found that the Senate is in recess only when it declares itself as such). I can't see any reasonable court deciding that failing to write on official White House stationary invalidates an executive order. There might be an argument that the President wasn't faithfully executing the laws as passed by Congress, but the Legislature has its own means (impeachment) for enforcing that.
If the contention is that the illegal acts happened after he was president, that's a potential case, but I think it still faces a fairly high bar to show that keeping the documents wasn't justified by actions taken as president: that would require a court to take significant leeway in interpreting how the executive ran its operations. A precedent of "just because a President [claims to have] issued verbal instructions to do things that are lawful except for violating prior executive orders doesn't prevent your prosecution for violating those prior orders" would be terrible.
Does an elected President (in particular, one with no prior service) even have to sign SF 312? That NDA is the vehicle through which most criminal charges for mishandling classified information flow, and without it it's unclear that any charges could stick to a non-signatory. That's why the powers that be can't charge the journalists at The Washington Post who published the Snowden leaks.
Now, the fact that classification is almost entirely due to Executive fiat is, I would agree, a terrible arrangement, and it would make quite a bit of sense to codify (much of) the existing ruleset through an act of Congress. But, in its great wisdom, Congress hasn't decided that doing so is worth its effort. Ultimately, I'm not a fan of Trump, but this really seems like a politicized effort to bring historically unprecedented charges.
I would like to note that blanket revocation is the worst possible outcome. For every American except Trump, of course.
It was almost certainly legal for Trump to pen a numbered EO fucking up the entire classification scheme. That would have caused an absolute crisis among the executive branch, possibly extending to Congress and the defense industry. He shows no signs of having done this in office. If he comes forward with such an order, or even a memo to that intent, he might well dodge any of the classification charges. But that would also make any intelligence, technical, or strategic information public. I’m not sure if it would be subject to FOIA, but anyone bound by SF-312 suddenly has written authorization to disclose it.
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My brief interactions with the government bureaucracy surrounding classified documents has made think of the classification process as infectious. I might have some details wrong, but I feel like I understand the broad strokes.
Anything and anyone around big secrets tend to become secret as well. And eventually things must either end in everything being secret or nothing being secret.
Lets illustrate the process:
There is a nuclear missile silo out in the middle of Kansas. It is secret. It needs to stay secret in case of a nuclear exchange. But you need soldiers (who need to be cleared) to man the silo. Their purpose for being out in Kansas now must be made secret. You need technicians who might need to occasionally check up on the silo. These people need to be cleared to make sure they can handle the secrets, also their reason for visiting Kansas needs to be made secret. The construction of the silo, secret. The replacement parts bought for it, secret. The logistics officer that makes sure people and parts are sent out there, he needs to be cleared, and what he works on needs to be secret so no one can target him to figure out the silo locations. Every piece of the supply chain that touches this missile silo needs to be secret, and to be handled by people who are cleared for that secret information.
There is of course not one missile silo, or one single thing that needs to be kept secret. There are many things that justifiably need to be kept secret. But the process of keeping those secrets involves closing down all the avenues for figuring out the secret from second hand sources. And maybe even third hand sources. Or accidentally 4th, 5th, and 6th hand sources. Because access to classified documents is a "need to know basis" no one in the chain is necessarily certain where they are in the chain.
This is why secrecy and classification is infectious. Right now if you work at all with certain government agencies, like any branch of the military, the CIA, FBI, etc then you will almost certainly have to get a top secret clearance. And all you might ever do is touch the most boring and mundane documents and projects. The system of secrets is illegible even to itself.
It sometimes works this way, but there are certainly cases where specific facts can remain classified in isolation on systems that are acknowledged. The DoD likes to claim top speeds "in excess of" a public value, while the actual numbers are much more closely guarded, and they presumably avoid exceeding the claimed value outside of controlled conditions. Your missile silos in North Dakota are part of Minot Air Force Base, which even has a public web site, but I doubt the silo coordinates are on it. I can only assume that completely secret programs are particularly expensive and avoided when possible.
Although I'll agree that your concern is reasonable and there are plenty of folks worried about overclassification, even within the government.
The need to hold the clearance doesn't imply constantly working with such material. I've talked to folks with TS clearances who have offices with windows: sometimes it's a small fraction of the job in a separate space. But having a standing clearance makes it easier to have certain discussions on short notice (and, as someone once told me, "prevents paperwork when people make mistakes").
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This presupposes that there is in fact a single method by which the President declassifies information.
As argued way back when, the theory of this case is that Trump (1) willfully decided to remove classified information in violation of the law but (2) Trump could have cured the violation by declassifying the documentation (3) yet by not using a specific incantation he failed to declassify.
I think the appropriate response is that since in fact there is no special incantation the President must follow when it comes to declassifying documents AND people don’t purposefully break crimes when they have the unilateral power to make it not a crime, Trump’s action of taking the documents de facto made them not classified.
The fact that Trump later allegedly referred to the documents as classified doesn’t contradict the above; he could be saying it colloquially that the information is sensitive and he didn’t want to share it with a reporter.
Seems special pleading: why are we requiring no special incantation when declassifying, but are requiring a special incantation ("these are classified" is not enough!) when classifying?
That said, has Trump spoken any incantation for declassifying?
Because classifying documents make it a crime for how other people handle them so there needs to be a process as a matter of due process for people who don’t have the unilateral ability to declassify.
Stated differently, the president can reveal classified info to Allies or even enemies on a phone call (as this may be necessary to achieve a certain strategic goal). That means the President effectively declassified the material without any special incantation.
I’m suggesting a similar argument here. Or stated differently, the president as regards to classification per se cannot mishandle classification. He of course can be liable for what he does with the documents (eg sell the documents to a third party for money which is a bribe). But since the sole source of classification and de classification is the president the president cannot willing break classification laws.
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does he have to? He is not bound by his executive orders and I am not sure on this issue he can be bound by congress.
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This is true, but I'm unaware of any (successful) instance of bringing charges against someone without a prior position of trust (see the SF 312 question). Nobody charged the editors of The Washington Post for possessing the Snowden documents, which were presumably "relating to the national defense," nor can I think of anyone other than the leakers charged for possessing leaked documents in the cases of Manning, Winner, and Teixeira. The Assange case is still outstanding and raises a lot of relevant questions.
Of course, I suppose that would be moot if someone produced a SF 312 signed by Trump himself.
But you have a reasonable argument that could be made, I just think this treads on lots of areas of novel law that will (given reasonable legal strategy, which is hardly a given for the parties in question) presumably raise lots of opportunities for challenges and appeals.
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This is an elegant explanation of this issue
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