Some defenders of former President Trump’s taking classified documents with him after he left the White House are running a disinformation campaign. They say there can’t be anything criminal in this because Trump declassified the documents. This is irrelevant under applicable criminal laws.
Scott R. Anderson of Brookings Institute posted a good piece on LawFare about this, “Does It Matter What (If Anything) Trump Declassified?” https://www.lawfareblog.com/does-it-matter-what-if-anything-trump-declassified. I thought it might be a good to review the law on this blog. In later posts, I will get into the declassification of the JFK records.
The criminal laws on disclosing national security information are not related to the security classification system, except for evidentiary purposes. The criminal laws ask whether the disclosed information relates to the national defense. They are not geared to what might be stamped on the documents. Those stamped classifications, like Confidential, Secret, and Top Secret, are creatures of Executive Orders. Government employees may be barred from having access to them, e.g., denied a security clearance, fired for mishandling them, or enjoined from making the information public. But government employees may not be put in jail for violating the Executive Orders.
There is wisdom behind this result. A joke told in Germany during WWII was of two men talking. The first whispered that they had to be careful because their friend Fritz had just been arrested for what he said. “What was the charge?” the second man asked. “Disclosing state secrets,” the first answered. “Fritz was a carpenter. He didn’t know any state secrets. What did he say?” the second asked. The first man looked around to make sure no one overheard and whispered, “Hitler is a fool.”
The principle laws are these:
• Gathering, transmitting or losing defense information. 18 U.S.C. 793.
• Gathering or delivering defense information to aid a foreign government. 18 U.S.C. 794.
• Disclosure of classified information. 18 U.S.C. 798. Note however that the words “classified information” as used here do not refer to the security classifications established by executive order but rather to “communications intelligence,” such as “code, cipher, or cryptographic system.”
• Communication of restricted data. 42 U.S.C, 2274. “Restricted data” is data concerning (1) design, manufacture, or utilization of atomic weapons; (2) the production of special nuclear material; or (3) the use of special nuclear material in the production of energy. Communication of such information with intent or reason to believe it will injure the United States or secure an advantage for a foreign government is a crime.
• Receipt of restricted data. 42 U.S.C. 2275. This essentially criminalizes spying to get atomic secrets and requires intent.
• Protection of identities of certain United States undercover intelligence officers, agents, informants, and sources. 50 U.S.C. 3121. Criminalizes disclosure of the identity of covert agents.
Several hypotheticals illustrate how these work. I’ll start with the strictest, restricted data. An independent researcher who has never worked for the government or read a classified document on atomic bombs nevertheless publishes accurate information on how to make one. 42 U.S.C. 2274 makes it a crime if he publishes his paper with intent to injure the United States or to help a foreign government.
18 U.S.C. 798 is basically aimed at communications codes. Disclosing information about the cryptographic systems of the United States. is a crime. If such information falls into your lap, say you’re a reporter, and you publish it, you have violated the law. Atomic energy information and communications intelligence are considered dangerous genies. Once they are let out of the bottle, the government can’t put them back.
50 U.S.C. 3121 on disclosing agent identities is odd in several respects. First, it applies only to the identities of agents that are obtained from “classified information.” However, it does not define that term. It seems likely that it was intended to apply to information that was classified under an Executive Order, but since it doesn’t define the term, who knows what it means. Presumably, if the agent himself tells someone that he is working for the government, the person receiving that information is free to disclose it. This is an odd result. Second, although the title says it applies to “sources,” it apparently only applies to human sources. It does not apply to disclosures about how powerful a spy satellite's telescope might be. Third, although the title says it applies to undercover intelligence officers, the text only applies to “covert agents.” The CIA, for one, assiduously distinguishes between “case officers,” who are employees, and “agents,” who are not employees. As I recall, this law was amended as a result of the assassination of a CIA station chief after his name was published. But the text of the law wouldn’t seem to apply to that assassination.
The two most frequently used national security laws are 18 U.S.C. 793 and 794. The second law is aimed at what everyone thinks of as spying. It is a crime to gather national defense information to aid a foreign government or injure the United States. For example, it is November 1941, and two people are taking pictures of the naval ships at Pearl Harbor. One is a tourist who takes the pictures to show his friends back in Iowa. The second photographer will send his photographs to those in Japan who are planning the December 7 attack. In neither case is classified information involved. The first man has done nothing wrong. The second has committed a crime.
Section 793(a), (b), and (c) overlap with Section 794. Section 793(d) applies to someone with lawful access to defense information who passes it to someone not authorized to have it. The section also applies to someone with lawful possession of such information who refuses to return it when asked. Subparagraph (e) applies to someone who leaks information. And subparagraph (f) applies to a person who, through gross negligence, lets someone else acquire national defense information and to any person who fails to report such a loss.
The bottom line is that declassifying a document doesn’t mean the document is no longer subject to the criminal laws. Take the hypothetical of a person who doesn’t know the document was declassified and who delivers it to a foreign power. He has the requisite criminal intent. The document is stamped Top Secret. If the information in the document aids the foreign power or if the United States is harmed by its being passed on, why shouldn’t the person be charged as a spy? With respect to the boxes of classified documents kept at Mar-a-Lago, the claim that Trump had standing orders to declassify any document that left the White House is no defense if those documents in fact contain national defense information.
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