President's Power to Declassify

      Although I don't ordinarily defend Donald Trump, his statements on the president's power to declassify documents aren't as misplaced as some in the media make them out to be.  He told Hannity last night:  "If you're the president of the United States you can declassify just by saying: ‘It’s declassified.' Even by thinking about it." "There doesn't have to be a process. There can be a process, but there doesn't have to be. You're the president, you make that decision…I declassified everything."

       Well, his going on to say that the president only has to think in his head that a document is declassified and voila it is declassified is an exaggeration.  But there is no question but that the president can order documents declassified and that there is no formal process for this. 

       For example, during the Cuban Missile Crisis, a U2 spy plane flying over Cuba took photographs of the sites the Russians had in Cuba for nuclear-capable missiles. These photographs were highly classified.

One reason for classification was "sources and methods."  The United States didn't want the Soviets to know how good U2 photographs were.  But Kennedy felt that he needed to release the photographs if he was to convince the American people and the world of the threat.  The story isn't new.  It has been written about a lot.  And while Kennedy may have been told about the sources and methods issue, there was no formal process. Kennedy was president, and he said the photographs needed to be released. I believe John Bolton in his book says Trump did the same thing with satellite photographs.

        That's why I made the point in a prior post that the classification on a document is relevant only as an evidentiary matter with respect to whether someone who releases national defense information did so with criminal intent.  If the document is marked Secret, the person is on notice that it may contain national defense information, and he may be violating the espionage acts if he releases it.  

         Of course in Trump's case, some overt act of declassification is relevant since he's not president any more.  But that gets into issues that are beyond the point of this post.