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Presidents can’t declassify documents with Green Lantern superpowers

Let’s look at the many, many holes in Donald Trump’s theory of executive power.

- August 18, 2022

Pundits often claim that presidential power is mostly a matter of wanting something badly enough — so often that political scientist Brendan Nyhan dubbed it the “Green Lantern” theory. Nyhan is critiquing pundits who suggest that presidents could do pretty much anything if they used enough willpower — as if the presidency weren’t constrained by laws and constitutional limits.

But since the FBI searched former president Donald Trump’s Mar-a-Lago estate for documents — some classified — that were allegedly held illegally, Trump’s allies have added a new comic-book twist to this theory. They’re arguing that a president can declassify a document just by thinking about it. In this telling, any documents Trump brought home had been declassified just because he took them — and were therefore already in the public domain.

But (if we might nod to Lyndon B. Johnson) that lantern won’t shine.

Presidents aren’t superheroes

Indeed, the wish-based method of declassification is wishful thinking. New York Times reporter Charlie Savage’s tour of the topic quotes one expert as calling it a “logical mess” to ask whether a president can declassify information without telling anyone. Classification affects how the government handles documents. Unless agencies know a document’s classification, they can’t change how they handle it.

Other versions of the argument are not necessarily better. In one telling, during his presidency Trump issued a “standing order” that any document brought from the Oval Office to the White House residence was immediately deemed declassified. But Trump’s former national security adviser John Bolton called this “a complete fiction.” And again, how would agencies be notified?

Similarly, Kash Patel, briefly chief of staff to Trump’s last acting secretary of defense, told Fox News that Trump had issued “sweeping declassification orders on multiple occasions,” apparently relying on either verbal instructions or a self-executing order that anything that Trump took from the White House on Jan. 20 was, by definition, declassified. This in turn was deemed “laughable” by former Homeland Security secretary Jeh Johnson, since “part and parcel of any act of declassification is communicating that act to all others who possess the same information.”

As law professor Oona Hathaway detailed in a 2021 law review article, the classification system grows from the president’s constitutional authority as commander in chief. After World War II, presidents set classification rules by issuing executive orders, aiming for a uniform system to safeguard information, “the unauthorized disclosure of which would or could harm, tend to impair, or otherwise threaten the security of the nation,” as President Harry S. Truman’s 1951 Executive Order 10290 put it.

Presidents can evade this process, acting to declassify material quickly and almost on a whim. Jimmy Carter, Ronald Reagan and George W. Bush released specific intelligence ranging from satellite photos to Presidential Daily Briefs to broader threat assessments. Trump did so even more casually, including his 2017 disclosure to Russian officials of ISIS-related intelligence and his tweet of a photo of an explosion at an Iranian satellite launch site.

But there are limits to presidential whim. In October 2020, Trump — by tweet — “fully authorized the total Declassification of any & all documents pertaining to the greatest political CRIME in American History, the Russia Hoax …. No redactions!” Yet Trump’s own Justice Department repeatedly pushed back against releasing these and other supposedly declassified documents — and won. In July 2020, the 2nd Circuit Court of Appeals stated flatly that “declassification, even by the President, must follow established procedures.” And when journalists sought the promised “CRIME” materials, then-Trump Chief of Staff Mark Meadows gave the court a sworn declaration that “the President indicated to me that his statements on Twitter were not self-executing declassification orders and do not require the declassification or release of any particular documents.”

Advocates of absolute executive authority — via tweet or otherwise — appeal to the Supreme Court’s 1987 decision in Department of the Navy v. Egan. There Justice Harry Blackmun wrote that the president’s “authority to control access to information bearing on national security … flows primarily from th[e] constitutional investment of power in the president [as commander in chief] and exists quite apart from an explicit congressional grant.” But that hardly gives the president exclusive authority over all classification and declassification decisions. As Louis Fisher argues, this language allows the president to act in the absence of congressional action, but not against congressional action.

Congress has shaped the system as well

Which matters, because Congress has shaped the classification system over the years. For example, the Atomic Energy Act puts nuclear weapons information in a special “restricted” category. Even the executive orders establishing the classification system make clear that they do not apply to information classified under the AEA.

Legislators have also mandated the release of information, as with the JFK Assassination Records Act and the Freedom of Information Act, and required the president to issue policies on classification, as in the FY1995 Intelligence Authorization Act. In 2018, Trump himself signed a law that imposed a possible five-year prison term on any “officer … of the United States” who “knowingly removes” classified information “with the intent to retain such documents or materials at an unauthorized location.” Presidents can’t undo laws like that by executive order.

That law was not cited specifically in the FBI’s Mar-a-Lago search warrant. But one that was, the Espionage Act, does not even refer to classified material. Instead, the law seeks to protect “information respecting the national defense” that “could be used to the injury of the United States or to the advantage of any foreign nation.” In other words, even if Trump had declassified the documents with his Green Lantern powers, keeping them could still have been illegal.

Legislators have the authority to write a broader classification system into federal law, if they wish. Odd bedfellows Sens. Daniel Patrick Moynihan (D-N.Y.) and Jesse Helms (R-N.C.) argued in 1997 in favor of doing so, since “the absence of a statutory framework has resulted in unstable and inconsistent classification and declassification policies.”

That critique has lost little of its force. Congress could step into the breach today — at the least, to clarify that declassification requires a specified process, not an unspoken impulse or social media post.

Kenneth R. Mayer (@uwkenmayer) is professor of political science at the University of Wisconsin at Madison and author of With the Stroke of a Pen: Executive Orders and Presidential Power (Princeton University Press, 2002).