AIUI, since the agencies that determine what government information is classified or not ultimately all work for the President, said President cannot violate classified disclosure laws by definition. If the President tells restricted information to someone normally not authorized to know, it’s not illegal for either participant.

Is the Vice-President also considered ranked above the agencies, and could disclose restricted information? Of course if the President objects, the VP could be in trouble, so the VP probably shouldn’t outside of emergencies.

2 Answers 2


[the] President cannot violate classified disclosure laws by definition. If the President tells restricted information to someone normally not authorized to know, it’s not illegal for either participant.

As the answer by user6726 makes clear, the above is incorrect. The President may be able to declassify classified documents. But until s/he has actually done so, their disclosure may still be criminal. Moreover, The Espionage_Act may well apply. This is completely separate from the classification system, and predates that system by some 35 years.

18 U.S. Code § 793 regulates the collection and distribution of "information respecting the national defense". Specifically subsection (d) provides that:

(d) Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it; [commits a crime].

Neither the President nor the Vice-President is automatically exempt from this law, although the stated intent would need to be proved in any prosecution.

  • I presume that "emtsd.ut" is a case of finger slippage, but I can't make out what it should be. Also there's no mention of intent in the law.
    – phoog
    Commented Sep 19, 2022 at 7:44
  • 1
    @pgoog "which information the possessor has reason to believe could be used to the injury of the United States" is an intention element, or at lest a "statw of mind" element to the offense.. Commented Sep 19, 2022 at 12:34
  • 1
    @pgoog typing error fixed. Thank you. Commented Sep 19, 2022 at 12:37

This issue is currently covered by Executive Order 13526, which sets the rules for classification and declassification. The power to classify is given to the President and the Vice President (clause 1), and a list of others. The power to declassify (sec 3.1) is given to  

(1)   the official who authorized the original classification, if that official is still serving in the same position and has original classification authority;

(2)   the originator's current successor in function, if that individual has original classification authority;

(3)   a supervisory official of either the originator or his or her successor in function, if the supervisory official has original classification authority; or

(4)   officials delegated declassification authority in writing by the agency head or the senior agency official of the originating agency.

Since the VP can classify material, he can declassify that same material. He cannot declassify other material: he is not a supervisory official of the originator that is in e.g. DoD. The VP is neither "above" nor below executive departments (VP powers are rather limited). The executive hierarchy unifies under POTUS, and the VP's office is rather small (does not include any aspect of the DoD or the DoE which is where the classifiable material resides). The extent of that branch is specified in 3 USC 106.

In an emergency, the VP could be the "current successor in function" of POTUS and thus able to fully classify and declassify.

A related question would be whether either POTUS or VPOTUS have the authority to provide a classified document to an 'unauthorized' person: or whether they have unilateral power to authorize a person. Executive Order 12968

sets up the rules for disclosing documents, and are stated in terms of granting access by the military or agency employees. 'Agency' is defined in 5 USC 105 as "an Executive department, a Government corporation, and an independent establishment", and POTUS and VPOTUS are specifically excluded from the set of "employees" of agencies. The basic restriction on disseminating classified material is that

No employee shall be granted access to classified information unless that employee has been determined to be eligible in accordance with this order and to possess a need-to-know.

Executive Order 13467 adds a few modifications

Constitutional officers (POTUS, VPOTUS, members of Congress, Supreme Court Justices and some others are not subject to the requirement to hold a security clearance, as discussed here. Because the qualifications for that position are set in the Constitution and cannot be modified by Congress. Therefore, access is granted.

Unlike the Sec’y of Defense or Attorney General, the Vice-President is not a subordinate of the President who serves at the pleasure of the President. POTUS cannot (legally) order VPOTUS, and the "shall not provide access" provisions of these executive orders do not necessarily apply to the Constitutional officers. However, Congress enacted 18 USC 798 which makes it a crime for anyone to

knowingly and willfully communicate[], furnish[], transmit[], or otherwise make[] available to an unauthorized person … any classified information—

plus a specific list of things that could be called 'spy stuff', like cryptographic systems and 'secrecy stuff'. Therefore, even POTUS cannot give secret spy codes to an unauthorized person, though at least POTUS can declassify documents.

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