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Politifact May 15, 2017

Does the president have 'the ability to declassify anything at any time'?

By Louis Jacobson

The blockbuster article in the Washington Post saying President Donald Trump had "revealed highly classified information to the Russian foreign minister and ambassador in a White House meeting" didn't just put the White House on the defensive. It also put Republican lawmakers in a tight spot.

One of the members of Congress who commented after the newspaper's revelations was Sen. James Risch, R-Idaho. According to CNN, he told reporters, "The minute the president speaks about it to someone, he has the ability to declassify anything at any time without any process."

Is that accurate? Independent experts said Risch is on target concerning the legal powers of the president. Some experts added, however, that the senator's formulation left out some context that is relevant for assessing Trump's alleged actions.

The president's classification and declassification powers are broad

Experts agreed that the president, as commander-in-chief, is ultimately responsible for classification and declassification. When someone lower in the chain of command handles classification and declassification duties -- which is usually how it's done -- it's because they have been delegated to do so by the president directly, or by an appointee chosen by the president.

The majority ruling in the 1988 Supreme Court case Department of Navy vs. Egan -- which addressed the legal recourse of a Navy employee who had been denied a security clearance -- addresses this line of authority.

"The President, after all, is the 'Commander in Chief of the Army and Navy of the United States'" according to Article II of the Constitution, the court's majority wrote. "His authority to classify and control access to information bearing on national security ... flows primarily from this constitutional investment of power in the President, and exists quite apart from any explicit congressional grant."

Steven Aftergood, director of the Federation of American Scientists Project on Government Secrecy, said that such authority gives the president the authority to "classify and declassify at will."

In fact, Robert F. Turner, associate director of the University of Virginia's Center for National Security Law, said that "if Congress were to enact a statute seeking to limit the president's authority to classify or declassify national security information, or to prohibit him from sharing certain kinds of information with Russia, it would raise serious separation of powers constitutional issues."

The official documents governing classification and declassification stem from executive orders. But even these executive orders aren't necessarily binding on the president. The president is not "obliged to follow any procedures other than those that he himself has prescribed," Aftergood said. "And he can change those."

Indeed, the controlling executive order has been rewritten by multiple presidents. The current version of the order was issued by President Barack Obama in 2009.

The national-security experts at the blog Lawfare wrote in the wake of the Post's revelation that the "infamous comment" by President Richard Nixon -- that "when the president does it, that means that it is not illegal" -- "is actually true about some things. Classified information is one of them. The nature of the system is that the president gets to disclose what he wants."

Two caveats

So Risch's comment holds water when it comes to the extent of the president's powers. But some experts said that Risch's formulation leaves out some notable aspects of the particular case involving Trump.

The first caveat: While Trump has the power to declassify information, he doesn't appear to have done that in this case, at least at the time the story broke.

"There's no question that the president has broad authority to declassify almost anything at any time without any process, but that's not what happened here," said Stephen I. Vladeck, professor at the University of Texas School of Law. "He did not, in fact, declassify the information he shared with the Russians, which is why the Washington Post did not publish that information."

Instead, Vladeck said, Trump "took it upon himself to authorize officials from a foreign government to receive classified national security information that was itself derived from a different foreign government's intelligence gathering. That's just not the same thing as what Sen. Risch described, and the law on this topic is far murkier."

Elizabeth Goitein, co-director of the Liberty & National Security Program at NYU's Brennan Center, agreed that Risch's point speaks to general presidential authority but not what happened in this particular case.

"Trump surely would not concede that the information in question is now 'unclassified' and available to anyone who files a FOIA request," she said. "The relevant question, therefore, is not whether the president can spontaneously declassify information, but whether the president is permitted to disclose sensitive national security information to anyone he wishes."

Turner noted, however, that this isn't necessarily a big distinction, since the president is ultimately the decider of what is classified and not. If his appointees disagree with his actions, "he can overrule their decisions," Turner said. "Within the Executive Branch the president is the boss."

The second caveat: Just because something is legal doesn't mean that it's a smart idea.

"The important caveat is that 'legal' and 'sensible' may be different things," said John Pike, the director of globalsecurity.org. "It may be legal, but it may fail to avoid the appearance of impropriety."

Setting aside ethics, doing what Trump is alleged to have done could have negative practical consequences for the United States. "It could wreck the underlying intelligence-sharing agreement and place the U.S. at a disadvantage," Aftergood said.

That said, the line between wise and unwise is a judgment call.

On the one hand, Turner agreed that alienating an ally by not following their orders "could have very serious consequences."

On the other hand, he said, it's not outlandish to argue that sharing closely held information with Russia could advance, rather than hurt, national interests.

Turner said it may be "in America's interest to cooperate with Russia in the struggle against ISIS, including sharing intelligence information that may help save Russian lives and seeking information that may save American lives and those of other potential victims of ISIS attacks. Obviously, in the process we will want to safeguard sources and methods that might weaken our ability to keep track of what President Putin is up to--as he is potentially a greater threat to our security than is ISIS. But the struggle against ISIS is an area where the United States and Russia have a shared interest."

In a statement to PolitiFact, Risch's office said that criticism of the wisdom of President Trump's action would be a personal opinion, but such sentiments would not speak to "the letter of the law."

"Sen. Risch can tell you that all former presidents of the United States spoke regularly with heads of states and discussed classified matter, if they determined it to be in the best interest of the American people," the statement said.

Our ruling

Risch said, "The minute the president speaks about it to someone, he has the ability to declassify anything at any time without any process."

We found broad agreement that a president, using powers granted by the Constitution, is able to declassify essentially anything. However, experts added that Risch's comment was not entirely on point for the particular situation involving Trump.

In this case, it appears Trump didn't actually use his declassification power before talking to the Russian officials, and just because Trump's actions were legal doesn't necessarily mean they were wise. These caveats add nuance to analyses of what Trump did.

The statement is accurate but needs clarification and additional information, so we rate it Mostly True.

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