Friday, August 12, 2022

A Possible Workaround

Uh-oh. This guy speaking on Newsmax is wrong but....


The Newsmax guest is former U.S. Representative Michael Grimm of New York State, who contended in relevant part

That's why we have a classification system. And that's why those plenary powers of the President of the United States include literally just saying right now "this is declassified. This is classified. This is declassified." That's all he has to do. He doesn't even have to fill out paperwork. If he says it's declassified, it's declassified.... And who can possibly say that as he walked out, ten minutes before he was no longer President, he didn't simply say "those 15 boxes, those 20 boxes, are now declassified.?"

Grimm is not a lawyer, though that's probably irrelevant because lawyers are often wrong, GOP lawyers often disreputable. For what it's worth, he's very likely wrong about a President's legal discretion on classification. Bradley Moss, a Washington, D.C. lawyer who works on national security cases, told Politifact

Follow-through is required.

He had to identify the specific documents he was declassifying, he needed to memorialize the order in writing for bureaucratic and historical purposes, and he needed to have staff physically modify the classification markings on the documents themselves. Until that was done, the documents, per the security classification procedures, still have to be handled, transmitted and stored as if they were classified.


Richard Immerman, a historian and an assistant deputy director of national intelligence in the Obama administration, disagreed and said that, while the president has the authority to declassify documents, there’s a formal process for doing so, and there's no indication Trump used it.

“He can’t just wave a wand and say it’s declassified,” Immerman said. “There has to be a formal process. That’s the only way the system can work,” because otherwise there would be no way of knowing who could handle or see the documents.

“I’ve seen thousands of declassified documents. They’re all marked ‘declassified’ with the date they were declassified,” Immerman said... 

"Trump could say we're declassifying this until he's blue in the face, but no one is allowed to touch those records until the markings are addressed," said Moss, a frequent Trump critic on Twitter.

But there are ways around the law and

Kash Patel, a Pentagon chief of staff during the Trump administration, told Breitbart News in May that the documents previously recovered from Mar-a-Lago had been declassified by Trump, but their markings were not updated. “Trump declassified whole sets of materials in anticipation of leaving government that he thought the American public should have the right to read themselves,” Patel said then.

“It’s information that Trump felt spoke to matters regarding everything from Russiagate to the Ukraine impeachment fiasco to major national security matters of great public importance — anything the president felt the American people had a right to know is in there and more,” Patel said then, adding that he was with Trump when the then-president said, “We are declassifying this information.”

Patel, who declined comment on the documents this week, told Breitbart that the “White House counsel failed to generate the paperwork to change the classification markings, but that doesn’t mean the information wasn’t declassified.”

It does mean the information wasn't declassified. However, it does not mean that the President didn't intend for it to be declassified or claim that he did, especially because

A source who had discussed the matter with Trump but was not authorized to reveal those conversations said the former president wasn't concerned with formal protocol.

"We’ve told him there’s a process and not following it could be a problem but he didn’t care because he thinks this stuff is dumb,” the source said. “His attitude is that he is the president. He is in charge of the country and therefore national security. So he decides.”

Therefore, Trump's attorney could argue that the President believed that his power was limitless and "so he decides." And that he decided (all of) those documents should be declassified.  Counsel might maintain that it was his intent, and his order to subordinates, that the material be declassified. It was not his fault that it was not. Don't blame him.

Many of the documents thus remained classified. That, too, may have been a strategically brilliant move on the President's part.  While a document is classified, it is of greater value than otherwise- more valuable to the USA government and to any foreign governments which might be interested in the information it includes.

Whatever he took and whatever he claims, Donald Trump knows more about the process than do Michael Grimm and Trump's faithful and misguided followers.

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