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The claim has been made by Donald Trump and many others that the sitting President has the absolute right to declassify any documents he wishes. Leaving aside the issue of what procedure he would have to use or what evidence there would have to be to accept that a particular document was in fact declassified, I'm curious if it's really settled law that he has this power.

I can think of at least two cases where it would seem that he wouldn't have that power:

  1. Congress has declared some information classified, for example information related to nuclear weapons. Is it settled law that Congress has no idependent power to declare something classified such that the President cannot revoke that status? As a co-equal branch that also has national security responsibilities of all kinds, it would seem quite odd to say that Congress needs the President to classify things for it or that the President can revoke a classification that originates with Congress.

  2. The Constitution declares treaties ratified by Congress to have the power of Federal law, second only to the Constitution. Many classified documents are classified by the United States because their foreign sources declared them classified and our information sharing treaties require us to respect those designations. Is there really any reason to think the President can unilaterally revoke a classification designation imposed by a foreign power and that United States is obligated to honor by the operation of a treaty that the Constitution makes part of Federal law?

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  • Interesting premise re: treaty-mandated classification. Can you provide more specifics?
    – bdb484
    Sep 16 at 0:14
  • Information sharing is not generally done with actual treaties. There might be agreements, but those agreements are normally based on trust and not considered legally binding.
    – cpast
    Sep 16 at 0:30
  • @bdb484 Hard when such treaties normally contain this clause: "It will be contrary to this agreement to reveal its existence to any third party whatever." Sep 16 at 1:13
  • @cpast not necessarily like. Bilateral treaties are, in fact, reached between not the executive branches, but the legislative powers of states, I would say, more often than not. Why could those not include confidentiality clauses? Unfortunately, they do, and do not so seldom. Those really are not within the prerogatives of executive to disclose it would need the consent of the other party. The same situation is abused by Hungary in its China railway construction deals, for e.g..
    – kisspuska
    Sep 16 at 1:31
  • Are you saying that Trump may argue that the secret documents found during the search of his house were, in fact, declassified by him long ago?
    – PMF
    Sep 16 at 6:26

1 Answer 1

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Congress has passed some laws that enable POTUS (via is branch) to restrict access to certain information. For example 50 USC 3126, defines classified information to be

information or material designated and clearly marked or clearly represented, pursuant to the provisions of a statute or Executive order (or a regulation or order issued pursuant to a statute or Executive order), as requiring a specific degree of protection against unauthorized disclosure for reasons of national security.

Or, 50 USC 3164 defines it as

means any information that has been determined pursuant to Executive Order No. 12356 of April 2, 1982, or successor orders, or the Atomic Energy Act of 1954 [42 U.S.C. 2011 et seq.], to require protection against unauthorized disclosure and that is so designated

Under existing law, material is classified with a certain statutory authorization (in these instances under Ch. 44 of Title 50, "National Security"), and Congress has given POTUS the sole power to add and subtract documents from the list of "classified" materials. See especially Subchapter VI.

Of course, Congress cannot implement these laws themselves, that is the prerogative of the Executive branch (perhaps that is the feature of separation of powers that causes problems for understanding "classification"). In theory, Congress could pass a new law that imposes a special "classification" on a certain kind of document and furthermore limits the president's discretion to impose or remove said classification, they just have not done so yet.

The real limit on presidential declassification power is the Administrative Procedure Act. POTUS cannot, himself, actually do much except as commander-in-chief, besides order other people to do things. A previous president issued an order that describes what should be done by departments, w.r.t. classified material, but each department then has to devise "rules" which, depending on the rule, have to be put out for public comment. As long as there exists rules (in the Federal Register) that require something more than presidential say-so for classification or declassification, then POTUS cannot unilaterally (de)classify, he also has to follow the rules. Which he can order changed, but there is a procedure that has to be followed.

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  • So the President of the USA could order people to declassify documents, but couldn't do it directly himself? And if he didn't order anyone, or if those people didn't follow his orders, then the materials would remain classified?
    – gnasher729
    Sep 17 at 14:42
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    Yeah, leaving aside the automatic declassification requirement which takes decades to kick in, somebody in the executive branch has to do something to change a document from "classified" to "declassified". Actually, only SCOTUS can decide whether POTUS can directly declassify material, this being a presidential powers issue. So one can suspect that he can't, but this has not been put to the test.
    – user6726
    Sep 17 at 15:08

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