By Noah Feldman
Oh for the days when Donald Trump wasn’t taking the presidential daily brief — and didn’t know highly classified information that he could give to the Russians. But a bit bizarrely, Trump’s reported disclosure of Islamic State plans to two Russian officials during an Oval Office visit last week wasn’t illegal.
If anyone else in the government, except possibly the vice president, had revealed such classified information that person would be going to prison. The president, however, has inherent constitutional authority to declassify information at will. And that means the federal laws that criminalize the disclosure of classified secrets don’t apply to him.
If this doesn’t make much sense to you, I feel your pain. To understand the legal structure of classification and declassification requires a brief journey into the constitutional law of separation of powers. That’s not always especially fun. But at this juncture in U.S. history, it’s essential. Not since Richard Nixon’s administration has separation of powers been so central to the fate of the republic.
The authority to label facts or documents as classified rests with the president in his capacity as a commander in chief. Or at least that’s what the U.S. Supreme Court said in a 1988 case, Department of the Navy v. Egan.
Justice Harry Blackmun, who wrote the opinion, said that the executive’s “authority to classify and control access to information bearing on national security … flows primarily from this constitutional investment of power in the President and exists quite apart from any explicit congressional grant.”
Blackmun’s idea that the president has an inherent right to decide who gets access to classified information seems to imply the converse: that the president has the inherent authority to declassify information, too. Although there’s no case on this point, scholars took that view during the years of the George W. Bush administration, when the president was thought to have declassified some information that was leaked to the news media by White House aide I. Lewis “Scooter” Libby.
It makes sense. If it is up to the president to decide what can’t be disclosed, it should be up to him to decide what can be.
That still leaves the question of whether the president would need to issue a formal order of declassification before revealing the information. According to the report in the Washington Post, Trump pretty clearly didn’t do that: He just made a judgment that he wanted to pass on the information to Russian Foreign Minister Sergei Lavrov and Ambassador Sergey Kislyak. Indeed, it seems altogether conceivable that he made the decision in the moment, without thinking through its practical consequences, much less the classification status of the information. (White House National Security Adviser H.R. McMaster denied the Post’s report Monday night, saying, “At no time were intelligence sources or methods discussed, and the president did not disclose any military operations that were not already publicly known.”)
It would be nice to say that, just as the president authorizes classification through a formal executive order, he should have to issue a similar statement to declassify. But that’s probably too formalistic. In constitutional terms, an executive order is just a presidential order reduced to writing for the benefit of the rest of the executive branch. The president likely can’t be bound by an executive order, whether his or an order from the proceeding president.
If you’re following closely, you’ll have noticed an anomaly: The president can classify and declassify. But the president can’t send people to prison for disobeying his order. That requires a federal law passed by Congress, and a conviction before a judge. Thus, under the separation of powers, the president has inherent authority to fire his own employees for disclosing classified information, but lacks the power to punish them criminally without Congress and the courts.
That law exists: 18 U.S. Code Section 798, if you care to look it up. It makes it a federal crime to communicate “classified information” to an “unauthorized person.” The catch is that the law defines classified information as information determined classified by a U.S. government agency, and similarly defines an unauthorized person as someone not determined authorized by the executive branch.
That puts Trump in the clear insofar as he has an inherent authority to declare information unclassified.
The law goes on to criminalize any disclosure of classified information that’s “prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States.” At first blush that language would seem arguably to apply to Trump’s disclosure. But once again, the clause depends on disclosure of classified information — and Trump can simply say he declassified the information when he gave it to the Russians.
A twist with potential legal relevance might arise if someone else — like the leaker of this story — repeated classified information after Trump effectively declassified it. That person would have a compelling claim to be exempt from criminal prosecution also. This might matter if Trump decides to go after the leaker criminally.
So go ahead, be shocked by Trump’s disclosure. I know I am. Whether it reflects a studied or instinctive pro-Russian position or simply unthinking bad judgment, it seems to be a highly unusual and poor presidential move. But it’s protected by the constitutional power that comes with getting elected president of the United States.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.