December 23, 2022

Author: Henry Sokolski and Gary Schmitt

Don’t dismiss Trump’s assertion of presidential power to declassify information

The country is focused on the Jan. 6 committee’s criminal referral of former President Trump to the Department of Justice (DOJ) for four alleged crimes, including inciting and abetting an insurrection. But Trump’s decision to stash classified documents at his Mar-a-Lago residence continues to be investigated by DOJ. Although not rising to the level of insurrection, the possible crime of mishandling defense information and obstructing their lawful recovery deserves greater congressional attention.

Initially, Trump and some of his supporters claimed that, as president, he had declassified the documents, and, hence, they were his to keep. Putting aside whether keeping the documents, declassified or not, is a violation of presidential records law (which it most likely is), some commentators have dismissed the notion that the president could have in fact declassified the documents.

Lacking any written record, the former president’s claim is seen as typical Trump — just winging it when it comes to asserting presidential powers. That none of his lawyers have advanced this argument in court reaffirms the opinion of most that it should not be taken seriously.

But it would be wrong to simply dismiss Trump’s assertion, and it is an issue that is in danger of falling through the cracks. Presidents have long claimed the authority to classify materials by dint of the president being the nation’s chief executive and commander in chief — the only official vested under Article II of the Constitution with “the executive power.”

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