EXPLAINER: Declassification in the spotlight during Trump probe

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WASHINGTON (TSTIME) — In the weeks since the FBI searched Donald Trump’s Mar-a-Lago estate and seized about 100 classification-mark documents, the former president has maintained he had done nothing wrong and claimed to release the information. to give.

He doubled down on that point on Wednesday, saying in a TSTIME News interview that a president can declassify material “even by thinking about it.”

Trump has provided no evidence that he released the papers, an appeals court noted Wednesday as it rejected his team’s legal arguments, paving the way for investigators to continue investigating the documents as they consider whether to file criminal charges.

A separate special master charged with inspecting the documents also expressed skepticism when Trump’s lawyers hinted at the same defense earlier this week, but declined to offer any support for the idea that the papers had been released.

Democrats were sharper on Thursday: House Intelligence Committee chairman Adam Schiff tweeted, “This is not how this works. No idea.” Committee member Joaquin Castro called the claim “false and absurd”.

Presidents have broad authority to release material, experts say, but there is a detailed process that differs from what Trump described. Here’s a look at how declassification works:

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WHAT CAN A PRESIDENT DECLASSIFY?

Incumbent presidents have “unilateral and full authority” to release material, although this does not fully apply to information classified under the Atomic Energy Act, said national security attorney Bradley P. Moss.

Since the time of President Harry S. Truman, there has been an established process for protecting the country’s secrets, including varying levels of classification, said Glenn Gerstell, a former National Security Agency general counsel.

“It is critical that we do not inadvertently release information that, especially in the case of top secret information, could cause exceptionally serious damage to national security,” he said.

HOW DOES DECLASSIFICATION WORK?

There is also a detailed process for declassification with rules laid down under executive order. When a president wants to release something, he typically contacts the responsible agency, which has a broad say in whether the information becomes public, Gerstell said.

When documents are released, there is usually an arduous process to obscure what information still remains secret. “It’s not about a draft being released, or boxes of documents. It is word for word determination,” he said.

The declassification order should be reconsidered and all authorities involved should be notified, Moss said. The individual documents must then be re-marked to show that they are no longer considered classified.

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“It’s not clear what Jedi-style lawyers said you could release things with a thought, but the courts probably won’t embrace that claim,” said Jonathan Turley, a law professor at George Washington University who was a Republican witness. during the first impeachment trial against Trump in 2019.

The Justice Department has said there is no indication that Trump has taken steps to release the documents seized from his Florida home.

HOW DID TRUMP PRECLASS INFORMATION?

There is no doubt that during the Trump administration there were times when he took affirmative and very public steps to release information, especially when he saw a potential political advantage.

For example, his administration has repeatedly released information about the FBI’s investigation into possible coordination between Russia and the 2016 Trump campaign, hoping to publicly influence perceptions of the investigation.

The information included transcripts of telephone conversations between Trump’s first national security adviser, Michael Flynn, and the Russian ambassador, as well as a Republican House memo alleging the FBI had committed misconduct in obtaining a secret warrant to monitor national security. security to oversee a former Trump campaign adviser. .

Those actions raise the question of why he has not made similar public statements about the documents recovered at Mar-a-Lago, if he wanted them to be later deemed declassified.

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HOW CAN THIS INFLUENCE THE WIDER MATTER?

The roughly 100 classification-marked documents were among the roughly 11,000 documents seized by the FBI last month during a court-authorized search of Trump’s Florida club.

Federal agents are investigating possible violations of three different federal laws, including one that regulates the collection, transmission or loss of defense information under the Espionage Act, according to the search warrant.

The debate over declassification has been particularly heated since the Justice Department included a photo in a court file of some of the seized documents with colored cover sheets indicating their classified status.

But the question may not be the most important in terms of whether criminal charges will be filed, as classification status is not part of the laws in question.

“Even if he released them, that wouldn’t necessarily be a defense against the charges pending,” said Elizabeth Goitein, a national security expert at the Brennan Center for Justice.

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More on Donald Trump-related investigations: https://apnews.com/hub/donald-trump.

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The Singapore Time writers Eric Tucker and Mary Clare Jalonick contributed to this report.

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