The legal and political fights over the search of former President Trump’s Florida home are just getting started this week, and among the issues to be resolved are those involving the sensitive materials he is accused of taking with him from the White House to Mar-a-Lago.
According to the inventory, FBI officers took 11 sets of papers from Trump’s Palm Beach club on Monday, including materials labeled “Various classified/TS/SCI documents.” Agents also carried away four sets of papers labeled “top-secret,” three sets of documents labeled “secret,” and three sets of documents labeled “confidential,” according to the list of goods removed.
The classification levels of these documents vary based on their importance to US national security. According to federal classification laws, “confidential” is the lowest rung. If incorrectly leaked, information of this level might cause “identifiable harm” to national security. The next level, “secret” information, if incorrectly exposed, might have catastrophic consequences for national security. The category “top secret” is designated for information whose unauthorized disclosure would cause “exceptionally severe harm” to national security.
The term “SCI” refers to classified information involving sensitive intelligence sources, methods, or analytical processes that can only be discussed within a “SCIF” — a “Sensitive Compartmented Information Facility” — a secure room or building restricted to government officials with a corresponding security clearance.
Following the revelation of the search, the former president said in a post on Truth Social on Friday that the data “was entirely declassified.” In the next weeks, the administration and potentially the courts will consider that allegation. It’s unclear how much information the public will receive about how things will play out.
According to current and former intelligence officials familiar with the declassification process, the president’s ability to declassify documents works as follows.
First, a president of the United States does have unique declassification powers, however there is a procedure that entails written documentation and numerous additional stages.
A president cannot declassify papers based only on verbal orders. His directive to declassify a specific document would first be formalized in a written memo, normally authored by White House counsel, and signed by him.
Typically, the agency or agencies having interests in the material would be contacted and given the chance to comment on the declassification decision. However, as the final declassification authority, the president has the right to overcome any concerns they express.
When a final decision is reached and the appropriate agency gets the president’s signed message, the physical document in issue is marked — the previous classification level is struck out — and the document is stamped “Declassified on X date” by the agency in question.
Former Trump administration employees believe that Trump declassified the papers he brought to Mar-a-Lago, but the classification marks were not changed.
“The White House counsel failed to prepare the documentation to modify the classification marks, but that doesn’t imply the information wasn’t declassified,” former Trump defense official Kash Patel told Breitbart in May, referring to other data retrieved from Mar-a-Lago before. “I was there when President Trump said, ‘We are declassifying this material.’”
Courts may have to determine how broad a sitting president’s declassification powers may be in the end. However, US sources acquainted with the classification process to date point out that papers are not officially declassified until and until they are branded “Declassified” by the appropriate agency and after the submission of a formal note signed by the president.
It’s also unclear how significant a legal issue the categorization process and the president’s participation in it may be. According to the New York Times, none of the laws referenced in the warrant are dependent on whether the documents were classified or not. The Florida magistrate court signed the search warrant, which includes things “illegally possessed in violation of 18 U.S.C. 793, 2071, or 1519.”
Section 793 of the Penal Code, sometimes known as the Espionage Act, pertains to defense information. It applies, for example, to property that has been unlawfully taken “from its appropriate place of custody,” or that has been lost, stolen, or destroyed.
Section 2071 prohibits hiding, withdrawing, mutilating, or destroying documents submitted with U.S. courts. Section 1519 forbids hiding, deleting, or mutilating data in order to hinder or influence an inquiry.