The legal and political battle for thethis week has only just begun, and one of the questions to be resolved is about the classified documents he allegedly took from the White House to Mar-a-Lago.
FBI agents seized 11 sets of documents from Trump’s Palm Beach club on Monday, including documents identified as “various classified/TS/SCI documents,” according to inventory unsealed Friday. The list of items found also states that agents took four sets of documents labeled “top-secret,” three sets of documents labeled “secret,” and three sets of documents labeled “confidential.”
These sets of documents vary in levels of classification depending on the degree of their importance to U.S. national security. Under federal regulations governing classification, “confidential” means the lowest rung. Information at this level, if misdisclosed, could cause “identifiable damage” to national security. “The next level, “secret” information, can cause serious harm to national security if misdisclosed. The designation “top secret” is reserved for material whose unauthorized disclosure could cause “exceptionally serious harm” to national security.
The designation “SCI” is short for “Sensitive Compartmented Information” and refers to classified information involving sensitive intelligence sources, methods or analytical processes, and which can only be discussed within a “SCIF” – a “Sensitive Compartmented Information Facility ” – a secure room or building restricted to government officials with corresponding security clearance.
After news of the search emerged, the former president claimed in a message to Truth Social on Friday that the material had “all been released.” In the coming weeks, that claim is likely to be reviewed by the government and possibly the courts. It’s not clear how much information the public will have about how it unfolds.
As for the president’s power to release material, here’s some background on how it works, according to current and former intelligence officials familiar with the declassification process.
First, a US president has unique, far-reaching declassification capabilities, although there is a process that includes written documentation and several other steps.
It has not been the case that a president could release documents with only verbal instructions. His instruction to release a particular document would first be commemorated in a written memo, usually prepared by White House counsel, which he would then sign.
Typically, the management of the agency or agencies holding shares in the document will be consulted and given the opportunity to express their views on the declassification decision. However, as the ultimate authority for declassification, the president may decide to set aside any objections they raise.
Once a final decision is made and the relevant agency receives the signed memo from the President, the physical document in question would be marked – the old classification level would be crossed out – and the document would then be stamped, “Declassified on X date” by the appropriate instance.
Former Trump administration officials have claimed that Trump had previously released the documents he took to Mar-a-Lago, but that the classification marks had not been updated.
“White House counsel failed to generate the paperwork to change the classification markings, but that doesn’t mean the information hasn’t been released,” former Trump defense official Kash Patel told reporters. Breitbart in May about other material previously removed from Mar-a-Lago. “I was there with President Trump when he said, ‘We are releasing this information.'”
Courts may ultimately have to decide how drastic a sitting president’s declassification powers can be. But U.S. officials thus far familiar with the classification process point out that unless and until the documents are stamped “Declassified” by the required agency, and after the submission of a written memo signed by the President, they are historically not considered to be considered released.
It’s also unclear how central a legal issue might be to the classification process and the president’s role in it. Like the New York Times points out, none of the statutes in the writ rely on whether the records were classified or not. The search warrant, signed by the Florida magistrate, lists items that were “illegally in possession in violation of 18 USC § § 793, 2071 or 1519.”
That first code, Section 793, and better known as the Espionage Act, applies to defense intelligence. For example, it applies to material that has been illegally removed “from proper safekeeping” or that has been lost, stolen or destroyed.
The next statute, Section 2071, prohibits the concealment, removal, mutilation or destruction of documents filed in US courts. And the last, Section 1519, prohibits the concealment, destruction or mutilation of documents to hinder or influence an investigation.