Donald Trump Did Not Have the Power to Declassify Some Documents He Took

What Jack Smith is choosing not to indict Trump for may be the most damning stuff

Wikipedia. Creative Commons. Gage Skidmore.

In his criminal indictment of former President Trump, Special Counsel Jack Smith identified 31 separate classified documents that he alleged were retained by Trump in willful violation of the Espionage Act.  The content of these documents is not publicly known (and, indeed, might never be known). But Smith noted broadly that the trove of classified documents pertained to “defense and weapons capabilities of both the United States and foreign countries; United States nuclear programs; potential vulnerabilities of the United States and its allies to military attack; and plans for possible retaliation in response to a foreign attack.”

Even critics of “over classification” or those who think that the Espionage Act is vague ought to be impressed by Smith’s description of the content of the documents. This is not stuff that the government was classifying to dodge accountability for bad decisions. If Smith’s description is accurate, these documents contained genuinely sensitive information at the core of our national security interests whose disclosure would endanger intelligence assets, reveal intelligence-gathering methods, and tip off hostile nations to U.S. plans in the event of an armed conflict. One can debate the U.S. government’s threat assessment and methods. But few can deny that the government has an interest in national security—and protecting Americans engaged in it.  

But a close reading of the indictment, as well as an understanding of what is not in the indictment, makes it highly likely that the true state of affairs is even worse than what Smith has shown in the public record.

Trump’s Documents Are Genuinely Gob-Smacking In Importance

Each document mentioned in Smith’s charge sheet is characterized by its classification level.  Thus, we see documents that are “Top Secret” (ones whose disclosure is “reasonably expected to cause exceptionally grave” damage to American national security) and others that are marked “Secret”—which would merely cause “serious” damage. 

This top-level classification is supplemented by a host of “control system” markings that designate certain handling requirements or limitations on dissemination.  For example, several of the Trump documents contain the marking “NOFORN.” This indicates that the material in the document cannot be released to any foreigner.  Others list “REL TO USA, FVEY,” which means that the document can be released to appropriate officials of America’s closest allies, the so-called "Five Eyes,” namely the United Kingdom, Canada, Australia and New Zealand

Other markings relate to the origins or source of the material in the underlying document. The “FISA” marking tells us that the information was collected under the authority of the Foreign Intelligence Surveillance Act. This suggests that the contents of the document are intercepted communications involving a foreign power or a foreign agent.  This document could hypothetically contain the transcript of an intercepted call between two leaders of the Iranian government discussing drone shipments to Putin to aid his aggression against Ukraine.

Similarly, the “TK” designation stands for TALENT KEYHOLE, and it means that the intelligence in the document was sourced from a physical surveillance program such as a satellite.  This might be, for example, a picture of Russian troop concentrations taken by the National Geospatial Intelligence Agency.  Likewise, “HCS-P” stands for “HUMINT Control System—Product” and has information derived from a human intelligence source —that is to say, a covert agent.

The Tippy Top of Top Secret: What Smith Is Not Showing Might Be Even More Damning for Trump

There are even higher levels of classification than Top Secret.  These are Special Access Programs or SAPs with code word designations.  Those designations are nonsense phrases like TWISTED FEATHER.  Some such designations, like TK/TALENT KEYHOLE are publicly known and their meaning is well understood outside of the intelligence community.  But some SAP designations refer to methods of intelligence collection that are themselves so highly secretive that the very nonsense name of the collection method is also classified and not released to the public—on the theory that even knowing how many types of secret methods we employ regularly would, itself, be instructive for our enemies.

Remarkably— and this is the first place where the scope of Trump’s casual contempt for national security becomes evident—eight of the documents in Trump’s possession and randomly stored in his ballroom or toilet were so highly classified that even their nonsense nickname markings have been redacted.  Put another way, two-word designations that refer to super-classified programs that only a handful of officials know about were on documents stored in Trump’s toilet or office. 

More to the point, the presence of those designations means that information from those secret sources was available in the underlying document—information whose very existence, if known, might completely blow the collection methodology.  That’s why America’s intelligence agencies consider their sources and methods to be among their most closely guarded secrets—if you know what we have, you can infer how we got it.

But that is probably not the worst of it. 

Consider: When the FBI finally searched Mar-a-Lago in August 2022 they found 33 boxes containing 103 classified documents, of which 17 were Top Secret.  Only 10 of them are identified in the indictment.  Where are the missing ones?

It is possible that the missing documents were omitted because they were trivial.  But that seems highly implausible given their classification as Top Secret – that’s not a description typically appended to the irrelevant. And so, even though its speculative, the likelihood is that there were even more important documents in Trump’s files—documents so highly classified that the Special Counsel chose not to name them in the indictment.  Why would he refrain from doing that?

Trump’s Most Egregious Violations Can’t Even Be Prosecuted

The answer might lie in the Classified Intelligence Procedures Act (or CIPA), which sets up a process for using classified information in a public criminal hearing.  The elaborate rules include, for example, requirements that the defendant’s lawyers get a security clearance; that they handle the classified documents only in a secure facility; and that the consideration of those documents in the criminal trial be through substituted words. There are even processes where the jury can see a full document, but the defendant’s lawyers cannot—an extreme but rare case.

Still, there is always the possibility in a criminal trial that classified information will become public—either through the CIPA process itself or through actions by a defendant. Thus, before a document is included in a criminal indictment, it is considered in an elaborate inter-agency process where the possibility of public disclosure is considered.  The intelligence agencies that created the information weigh in—and sometimes—nay, in fact, quite often—decide to withhold the document and forgo prosecution because the intelligence professionals do not want to risk public exposure of the documents—or to publicly even acknowledge their existence. 

Indeed, the possibility is so real that it often allows defendants charged with Espionage Act violations or other charges relating to spying to negotiate a favorable plea deal. They argue that some of the secret data must become public for them to get a fair trial and this so-called “graymail” allows them to drive a hard bargain.  To cite one famous example, Oliver North’s threat to use his trial as a vehicle for disclosing national secrets led to the dismissal of some of the most serious charges against him.

To be sure, Trump is unlikely to take a plea deal. But for Smith, the possibility that Trump might publicize what he has taken is very real. Hence it is reasonable to suspect that the very worst of the classified cache of documents was withheld from the indictment rather than risk disclosure.

No POTUS Can Declassify What Is Mandated by Statute

There is one other twist to the classified documents that bears comment. Buried in Count 19 of the document is an item listed as “SECRET//FORMERLY RESTRICTED DATA.”  Now, at first glance this might seem odd, since “formerly restricted” data might suggest that the data in the document is no longer restricted, and thus no longer classified.  But that is not the case. 

The words “formerly restricted” are a designation that refers to information maintained by the Department of Energy relating to America’s atomic weapons.  The DOE has its own classification system that designates such information as “restricted.”  When that information is shared with, for example, the Department of Defense, the classification is merged with the more general classification system operated by the rest of the government, the information that was “restricted” at DOE is denoted as “formerly restricted” and classified under the more common methodology that maintained restrictions on its disclosure.

What is especially notable about this document, however, is that its classification is statutorily mandated by the Atomic Energy Act of 1954 to restrict the dissemination of information relating to atomic weapons and nuclear materials. Trump and his allies often make much of the fact that most of the rest of the classification system is an executive creation.  And that is true—the first peacetime classification order dates back to 1869. It covered army fortifications and rested on the president’s own authority as commander-in-chief.  Every president since then has continued the practice in one form or another, with the modern version tracing its lineage back to the post-World War II era.

Yet Trump’s defenders now insist that the president has plenary authority over the classification system. They effectively argue that “Trump could have a standing order declassifying all documents in his possession” or that “Trump could declassify the documents just by thinking about it.”  These arguments are legal nonsense. Even in a system created by executive rule, there remain rules governing declassification and processes for changing those rules. Trump did nothing to follow those rules.

But even if one were to indulge the nightmare fantasy of unlimited Trumpian declassification power, the document concerning the DOE would be the demise of that particular defense because information about our atomic weapons is classified by law—not by executive regulation.  And whatever superpowers of declassification Trump may possess, they do not extend to the power to unilaterally waive a valid statute.  And so this document—in Count 19— is one that Trump can never have declassified on his own, no matter how hard he tried.

Given that information about American atomic weapons systems is so sensitive, including it in the indictment would ordinarily raise serious concerns about disclosure under CIPA. But one suspects that this document was included precisely because it conclusively rebuts Trump’s nonsensical defense. But if there is one such document, there may be more that Smith chose not to reveal because of just how sensitive they are.

Many former employees and officials of the U.S. government have gone to jail for mishandling or illegally retaining classified documents—even when they expressed remorse and cooperated with the prosecutors. 

Given what we know, the classified information that Trump whisked to Mar-a-Lago likely contained some of the most sensitive secrets America possesses—an offense much, much more significant than most  (and possibly all) other defendants charged under the Espionage Act. But whether Trump will face penalties nearly as stiff remains to be seen.

Regardless, it is safe to assume that the man charged with securing national security severely jeopardized it.

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