Expert debunks 5 ‘myths’ Trump has pushed since Mar-a-Lago search
Donald Trump / Gage Skidmore.

The former director of the federal Information Security Oversight Office broke down five "myths and misunderstandings" about classification and public documents in a new analysis for Just Security.

"In the days since former President Donald Trump announced on his social media platform that the Federal Bureau of Investigation (FBI) had executed a search warrant at his home and business at Mar-a-Lago, there has been much discussion as to what authority Trump has or had as a former president and what laws or regulations he may have violated by possessing documents with classification markings outside of proper controls," J. William Leonard wrote. "This has led to the repeating of many myths and misunderstandings, often by the former president himself, as to presidential authority relating to classified information. I spent over 30 years overseeing the proper handling of such information, initially in the Department of Defense and ending my government service responsible for the oversight of classified information within the entire executive branch as Director of the Information Security Oversight Office (ISOO)."

The first myth he addressed was Richard Nixon's infamous defense that "when the president does it that means it is not illegal."

"True that Nixon said it, but the idea is false. Our nation is founded on a fundamental rule of law principle that the United States has a government of law, not men," Leonard explained. "In the Federalist Papers, James Madison wrote: 'If men were angels, no government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.' It is in recognition of this aspect of human nature that our founders embraced the concept known as the separation of powers, intended to ensure that no one person can gain absolute power and stand above the law."

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The second myth is that former officials are allowed to possess and/or disclose any information that has been declassified.

"False. Much of the unclassified information created by the federal government’s executive branch or otherwise in its custody is nonetheless sensitive and requires safeguarding or dissemination controls pursuant to and consistent with applicable law, regulations, and government-wide policies," he wrote. "Known as Controlled Unclassified Information, examples include information relating to federal taxpayers, witness protection, critical infrastructure protection and nuclear security. Both current and former government officials are subject to administrative or criminal sanctions should they improperly disclose or otherwise mishandle such unclassified information. Moreover, the unauthorized possession of certain controlled unclassified information such as Naval Nuclear Propulsion Information could be subject to prosecution under, among other statutes, 18 USC 793 of the Espionage Act, which does not mention classified information but rather applies to closely held national defense information the disclosure of which, if publicly known, could be used to the injury of the United States or to the advantage of any foreign nation."

The third myth is that the president has "absolute authority" to declassify information at will.

"Partly true, partly false. During and after his presidency, Trump has repeatedly made this claim. It is true that the president’s authority to classify and thus declassify information in the interest of national security derives from his Article II constitutional authority as commander-in-chief and the position of chief executive responsible for foreign relations. A Supreme Court decision — Department of the Navy v. Egan — is often used to assert unchecked presidential authority over classified information. However, there is information which is “classified” not pursuant to the president’s Article II authority but rather pursuant to statutory law," he wrote.

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The fourth myth was Trump's claim he had a "standing order" that automatically declassified any document Trump took from the Oval Office.

"Absurd. While hypothetically true, this notion is implausible from a practical perspective," he wrote. "If the former president personally declassified information contained in documents removed to the White House residence, procedures should have been in place to notify the official who originally classified that information who in turn would have to have notified the potentially millions of individuals who derivatively classified or otherwise had copies of that same classified information. No such procedures appear to have existed during the Trump administration. As such, if Trump had, in fact, declassified the records in question, the original classifier and the myriad of authorized users of that information would remain oblivious to the fact that the information contained therein would no longer have the legal protections of the classification system."

The final myth was that former presidents have control over their White House records.

"False. Starting with the administration of President Ford, and in reaction to the Watergate scandal of the Nixon administration, in addition to the Federal Records Act, records of each presidential administration are controlled by the Presidential Records Act (PRA), depending upon which element of the White House is involved. In this Act, Congress made it clear that the American people, not the former president, owns the records and assigns responsibility to the incumbent president for the custody and management of his presidential records," he wrote. "In sum, records of a president that were used during official duties belong to the American people – not to the president – and decisions about declassification and access to those materials are made by professionals within the federal government with the continuing responsibility to ensure that any disclosures do not place the security of our nation at increased risk."

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