Last updated on July 18th, 2023 at 02:06 pm
The non-partisan body called the Congressional Research Service provides the service of “policy and legal analysis to committees and Members of both the House and Senate, regardless of party affiliation. CRS is well known for analysis that is authoritative, confidential, objective, and non-partisan.”
They broke the Trump indictment down here.
This handy document just so happens to address most of the arguments Republicans are using to excuse ignoring ongoing and past harm done to the United States, our military, our foreign assets and allies.
Espionage Act of 1917 – the documents do not need to be classified to count under this act.
To wit (my bold and some minor edits for clarification):
18 U.S.C. § 793
The primary statute involved in the indictment—comprising 31 of the 37 counts against the former President—is 18 U.S.C. § 793. This provision is part of the Espionage Act of 1917—a statute originally enacted two months after the United States entered World War I. Congress has amended elements of Section 793 several times, but the bulk of the text has remained the same since Section 793’s enactment. A different section of the Espionage Act focuses on “classic spying” cases when an individual sends information to a foreign government or military, but Section 793 captures a broader range of activity than traditional espionage. Because Section 793 predates the modern system of classifying sensitive material, it does not use the phrase classified information. Instead, the statute protects information and material “relating to” or “connected with” national defense—often called national defense information.
National defense information is not defined in the Espionage Act, but the courts have settled on an agreed interpretation, which fits the documents Trump allegedly took:
The Espionage Act does not define national defense information, but courts have elaborated on its
meaning. In a 1941 decision, Gorin v. United States, the Supreme Court agreed with the interpretation that national defense is a “generic concept of broad connotations, relating to the military and naval
establishments and the related activities of national preparedness.” Lower courts have since stated that, to qualify as national defense information, the information must be “closely held” and its disclosure “potentially damaging” to the United States or useful to its adversaries.
Those accused of violating the Espionage Act have argued that the statute is unconstitutionally vague because it does not provide sufficiently clear standards for people of common intelligence to determine whether information in their possession qualifies as national defense information. In Gorin, however, the Supreme Court concluded that the statute’s state-of-mind (or mens rea) requirements had a delimiting effect that gave what was otherwise potentially problematic language enough definitiveness to pass constitutional muster.
Trump is charged with keeping certain national defense information that he is not authorized to have:
Section 793 is divided into several subsections with technical and legal distinctions. The indictment
charges violations of subsection (e), which applies when an individual is in unauthorized possession of certain national defense information. Section 793(e) prohibits, among other things, willfully retaining national defense information and failing to deliver it to the proper official.
The President has responsibility to protection national security (I would argue that Trump did not do this as president, citing the Oval office Russian sharing of secrets as but one example) — but what about the power of a president to declassify information? That isn’t even an issue here, but if it were, Trump is on tape after he left the White House admitting that he did not declassify this material and that he knew he shouldn’t be sharing it. At this point, Trump was no longer president so this argument doesn’t work on its face.
Presidential Control over Access to Classified Information and Materials
The Supreme Court has stated that the President has responsibility for protecting national security information as part of his role as Commander in Chief and head of the executive branch. The Court indicated that the authority to control access to such information “exists quite apart from any explicit congressional grant,” although it also suggested that Congress could play some role.
Consequently, many argue that the President has broad authority to disclose or declassify such information, which could make it available to the public under the Freedom of Information Act (FOIA) by removing its exemption from disclosure. According to a letter provided as an attachment to the affidavit, former President Trump also claims that “[a]ny attempt to impose criminal liability on a President or former President that involves his actions with respect to documents marked classified would implicate grave constitutional separation-of- powers issues.”
But if the argument held any merit, there are official procedures for declassification, and it dictates that usually it is the agency that classified information that can declassify it. Trump is not an agency that has classified the documents in question.
Executive Order 13526 sets the official procedures for the declassification of information. The relevant federal regulation, binding on all agencies, is 32 C.F.R. Part 2001. Typically, the agency that classified the information is the declassification authority, but the Director of National Intelligence (DNI) may also direct the declassification of information (see E.O. 13256 § 3.1). 32 C.F.R. § 2001.25 requires that declassified documents be marked in a certain way.
As for Trump’s claim that he has the authority to declassify information without following procedure and he a standing order to automatically declassify information he took with him, that doesn’t hold water either and these lawmakers know that (if they don’t, they have no business being anywhere near classified information):
Former President Trump reportedly argues that the President, bound by neither the executive order nor the regulations, has the authority to declassify information without following the regular procedures and that he had declassified the documents in question under a standing order that automatically declassified all documents that he took out of the Oval Office. The U.S. Court of Appeals for the Second Circuit appears to have disagreed with the claim to such authority, stating, in the FOIA context: “[D]eclassification, even by the President, must follow established procedures.” The court held that a FOIA litigant seeking to demonstrate that information had been declassified by presidential disclosure must show “first, that [the President’s] statements are sufficiently specific; and second, that such statements subsequently triggered actual declassification.” Some argue that declassification would entail communicating that change of status across federal agencies so that they can alter document markings on all materials that contain the newly declassified information.
It doesn’t work like Trump and Republicans are pretending it does, there are actual rules about matters pertaining to, for example as in one case under this indictment, our military plans:
The unauthorized disclosure of classified information does not result in its declassification, although officially acknowledged classified information may be subject to release under FOIA. Agency classification authorities, and presumably the President, may reclassify information, although if the information has already been made available to the public, certain criteria must be met. There do not appear to be any reports that the documents in question were subject to public release. If the documents were not declassified or have been reclassified by the Biden Administration, former President Trump could be permitted access to them if the head or a senior official of the originating agency grants a waiver.
Again, the statutes do not require these documents even be classified:
None of the statutes in the indictment requires that the materials at issue be classified, although the
classified status of such documents may be relevant to a court’s determination under the Espionage Act as to whether the documents contain information that is closely held by the government and thus meet the definition of national defense information. Courts generally give great deference to the executive branch in matters related to security classification.
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