Why Biden’s Document Situation is So Much Different Than Trump’s: Part 2 -Classification/Declassification
In this highly detailed series of reports, split into 4 parts, investigative reporter Kurt Dillon breaks down the legal and factual elements of each case
In this second part of the series, we will look at all of the United States' laws that govern the classification and declassification of materials. Once I have laid them all out for you to read for yourselves, I will compare both the Biden and the Trump situations to the established laws so we can see if either of them appears to be in violation of any of them, thereby being at risk of criminal charges.
There is unquestionably a lot of information to cover, so let’s get right to it.
Element #1 – What makes a document classified?
Once again, since it is only a basic understanding and definition of what classified material is and what criteria are used to deem when material needs to be classified, I will rely on Wikipedia’s basic definition here, because it’s relatively straightforward, happens to be 100% accurate, is easy to understand, and is linkable (some sources I use say the same things but are not linkable because they require paid subscriptions to read the information).
Just like in part 1 of this series, I’m linking the exact pages here for you to read for yourself and follow my breadcrumbs. There is a lot more information available on the topic and by clicking the source links used to support the Wiki page for any of you who really want to dive in and get a good, deep understanding of classified information – again, not info provided by Wikipedia, but reliable info from credible sources that are just indexed on the Wiki page.
That information and list of sources can be found on this Wikipedia page.
In relevant part, this is what those credible sources who edited the Wiki page have to say about the classification of material. Even though this is only part of it, it’s still a lot to absorb:
From Wikipedia (bold and underline added):
Classified information is material that a government body deems to be sensitive information that must be protected. Access is restricted by law or regulation to particular groups of people with the necessary security clearance and needs to know, and mishandling of the material can incur criminal penalties.
A formal security clearance is required to view or handle classified material. The clearance process requires a satisfactory background investigation. Documents and other information must be properly marked "by the author" with one of several (hierarchical) levels of sensitivity—e.g. restricted, confidential, secret, and top secret. The choice of level is based on an impact assessment; governments have their own criteria, including how to determine the classification of an information asset and rules on how to protect information classified at each level. This process often includes security clearances for personnel handling the information.
Some corporations and non-government organizations also assign levels of protection to their private information, either from a desire to protect trade secrets, or because of laws and regulations governing various matters such as personal privacy, sealed legal proceedings, and the timing of financial information releases.
With the passage of time, much-classified information can become less sensitive and may be declassified and made public. Since the late twentieth century, there has been freedom of information legislation in some countries, whereby the public is deemed to have the right to all information that is not considered to be damaging if released. Sometimes documents are released with information still considered confidential obscured (redacted), as in the adjacent example.
The question exists among some political science and legal experts whether the definition of classified ought to be information that would cause injury to the cause of justice, human rights, etc., rather than information that would cause injury to the national interest; to distinguish when classifying information is in the collective best interest of a just society, or merely the best interest of a society acting unjustly to protect its people, government, or administrative officials from legitimate recourses consistent with a fair and just social contract.
The purpose of classification is to protect information. Higher classifications protect information that might endanger national security. Classification formalizes what constitutes a "state secret" and accords different levels of protection based on the expected damage the information might cause in the wrong hands.
However, classified information is frequently "leaked" to reporters by officials for political purposes. Several U.S. presidents have leaked sensitive information to influence public opinion.
Typical classification levels
Although the classification systems vary from country to country, most have levels corresponding to the following British definitions (from the highest level to the lowest).
Top Secret (TS)
"Top Secret" redirects here. For other uses, see Top Secret (disambiguation).
KGB's "List of traitors to the Motherland, agents of foreign intelligence, and other wanted state criminals" (1979) seen in the Museum of Genocide Victims, Vilnius: originally marked top secret
Top Secret is the highest level of classified information. Information is further compartmented so that specific access using a code word after top secret is a legal way to hide collective and important information. Such material would cause "exceptionally grave damage" to national security if made publicly available. Prior to 1942, the United Kingdom and other members of the British Empire used Most Secret, but this was later changed to match the United States' category name of Top Secret in order to simplify Allied interoperability.
The Washington Post reported in an investigation entitled "Top Secret America" that, as of 2010, "An estimated 854,000 people ... hold top-secret security clearances" in the United States.
It is desired that no document be released that refers to experiments with humans and might have adverse effect on public opinion or result in legal suits. Documents covering such work field should be classified "secret".
April 17, 1947, Atomic Energy Commission memo from Colonel O.G. Haywood, Jr. to Dr. Fidler at the Oak Ridge Laboratory in Tennessee. As of 2010, Executive Order 13526 bans classification of documents simply to "conceal violations of law, inefficiency, or administrative error" or "prevent embarrassment to a person, organization, or agency".
Secret material would cause "serious damage" to national security if it were publicly available.
In the United States, operational "Secret" information can be marked with an additional "LimDis", to limit distribution.
Confidential material would cause "damage" or be prejudicial to national security if publicly available.
Restricted material would cause "undesirable effects" if publicly available. Some countries do not have such a classification in public sectors, such as commercial industries. Such a level is also known as "Private Information".
Official (equivalent to US DOD classification FOUO – For Official Use Only) material forms the generality of government business, public service delivery, and commercial activity. This includes a diverse range of information, of varying sensitivities, and with differing consequences resulting from compromise or loss. Official information must be secured against a threat model that is broadly similar to that faced by a large private company.
The Official Sensitive classification replaced the Restricted classification in April 2014 in the UK; Official indicates the previously used Unclassified marking.
"Unclassified" redirects here. For the albums, see Unclassified (Robert Randolph and the Family Band album), Unclassified (Adult Swim album), and Unclassified (Derrick Hoh album).
Unclassified is technically not a classification level, but this is a feature of some classification schemes, used for government documents that do not merit a particular classification or which have been declassified. This is because the information is low-impact, and therefore does not require any special protection, such as vetting of personnel.
A plethora of pseudo-classifications exist under this category.
Clearance is a general classification, that comprises a variety of rules controlling the level of permission required to view some classified information, and how it must be stored, transmitted, and destroyed. Additionally, access is restricted on a "need-to-know" basis. Simply possessing a clearance does not automatically authorize the individual to view all material classified at that level or below that level. The individual must present a legitimate "need to know" in addition to the proper level of clearance.
In addition to the general risk-based classification levels, additional compartmented constraints on access exist, such as (in the U.S.) Special Intelligence (SI), which protects intelligence sources and methods, No Foreign dissemination (NoForn), restricts dissemination to U.S. nationals, and Originator Controlled dissemination (OrCon), which ensures that the originator can track possessors of the information. Information in these compartments is usually marked with specific keywords in addition to the classification level.
Government information about nuclear weapons often has an additional marking to show it contains such information (CNWDI).
Yes, that was a lot of info, but, if you took the time to really read it, you now understand how the US Classification system works and why different designations are used for different types of materials.
Now that we have a decent understanding of why classified documents are classified, we next need to look at the situations when it is appropriate to declassify previously classified documents, and perhaps most important for our purposes, we are going to look at all of the applicable American laws which govern the mishandling of classified materials as well as the procedures for different authorities to use when declassifying anything.
I also want to show you one other page, an official government page from the US Senate Select Committee on Intelligence. It largely supports everything we read from the Wikipedia page I quoted but it comes from the government directly, so nobody can say that the info is bogus just because it was posted from Wikipedia.
Before we begin, however, the most important aspect for any of us to know and comprehend going in is that each and every person, agency, or institution that has any power whatsoever to declassify previously classified material, has its own established guidelines and prerequisites for doing so – that is, all except one.
But rather than take my word for that, I am going to show you all of the authoritative statutes pertaining to the declassification of material for each of those agencies, institutions or individuals. I’m also going to quote what the American Bar Association has to say on the subject.
So here goes….
In the first part of learning about the declassification of previously classified materials, we need to know that Titles 36, and 43 of the US Code govern the classification and declassification of most documents. It is also important to note that almost all, but a select few categories of classified documents automatically become declassified after 25 years and a few more become declassified after 30. The proof of that fact can be seen here, on this page from the US Department of Justice Archives. That page will tell you pretty much anything you might want to know about the automatic declassification process and its idiosyncrasies.
Next, this document I am linking you to is a page out of Title 43. In summary, that first paragraph (the only one that is relevant to our situation here) simply explains the procedure for any government agency who wants to request a classification review of some classified material in the hope that it can be declassified before the natural 25-year time-frame is reached.
This is done very frequently since, as you can imagine, information that is super sensitive today may not be even remotely sensitive – and may even be common knowledge - 5 or 10 years from now. Some of the most common instances where this happen is in the case of museums, political libraries, law libraries, and historical landmarks will request early declassification of materials that are germane to their functionality, despite the full quarter century since the time of the classification not having elapsed.
The most recent, and well-publicized time when this happened is when a 9/11 memorial museum requested the early declassification of several classified documents pertaining to the events of 9/11/2001.
Since it hasn’t been 25 years since the terrorist attack of that day, a special review for declassification as explained in this Title 43 document, was required.
In this specific case, rather than wait for the often lengthy process of declassification hearings, the group petitioned President Biden with their request to expedite the process. Biden opted to comply by signing an executive order demanding all the requested material be immediately declassified and given to the requesting group.
There is an important distinction to make here, however. It’s a distinction I will most definitely show you in the laws themselves shortly.
That distinction is, while it is most common for a sitting POTUS to declassify material through the signing of an executive order (that’s the way it is done a large percentage of the time), it is not required for a sitting POTUS to use an executive order to declassify documents and there are several examples of former presidents who did not.
As you can imagine that fact will become very important later on when I begin my contrast between the Biden and Trump scenarios. But for now, my only goal is to establish what the law says and what it requires and doesn’t require in matters of declassification.
In this endeavor, perhaps the most important document we will read is this one, from the Congressional Research Service.
In short, the document explains several of the official procedures for various agencies to declassify certain materials, but, for our purposes, it does an excellent job of explaining the role of the sitting POTUS in matters of declassification, and even uses the recent Biden executive order declassification as an example.
The CRS says (bold and underline added):
Declassification by the President
Public Interest Declassification Board
Requests for declassification can also be made to the Public
Interest Declassification Board (PIDB). The Public Interest
Declassification Act of 2000 (Title VII of P.L. 106-567)
established the Public Interest Declassification Board
(PIDB) to provide advice to the President and other senior
national security officials “on the systematic, thorough,
coordinated, and comprehensive identification, collection,
review for declassification, and release to Congress,
interested agencies, and the public of declassified records
and materials ... that are of archival value, including records
and materials of extraordinary public interest.” The PIDB
meets once a month to make recommendations on
declassification of records to the President who makes a
final decision. In 2021, for example, the PIDB
recommended the President declassify and release
particular records related to the September 11, 2001,
terrorist attacks. In making its recommendations, the PIDB
includes input from Congress “made by the committee of
jurisdiction or by a member of the committee of
jurisdiction, to declassify certain records, to evaluate the
proper classification of certain records, or to reconsider a
declination to declassify specific records” (50 U.S.C.
Executive Order (bold and italic emphasis added)
The President has the authority to declassify documents in
the public interest that originated in any department or
agency of the executive branch. A recent example is
Executive Order 14040, Declassification Reviews of
Certain Documents Concerning the Terrorist Attacks of
September 11, 2001, signed by President Joseph R. Biden
Jr. on September 3, 2021. This executive order directed
government departments and agencies that originated
records pertaining to September 11 to conduct
declassification reviews to disclose as much of this material
as possible in the public interest.
Of key importance here is the first sentence of the section titled executive order. That section begins by explaining that:
“The President has the authority to declassify documents in
the public interest that originated in any department or
agency of the executive branch.”
As you can see, nowhere here, or in any other applicable law I might add, does it say that there is any specific procedure, form, or markings that a president must make on classified material to declassify it. Instead, it does say, however, that “the president has the authority to declassify documents that originated in any department or agency of the executive branch.”
Where this situation deviates however, if you closely read all of the documents I’ve linked for you, is when an outside agency, like a museum or library, is requesting items be declassified. Under those circumstances, when the documents will ultimately be accessible to the public, then and only then, is it required for the declassifying authority – be it the president or anyone else – to create a specific paper trail of declassification and to ensure that all of the previously declassified material is now marked as declassified.
Once again, that is ONLY required if the documents being declassified will be available for public perusal and dissemination.
Also of note, The Georgetown Law Library provides excellent source material on the subject which we have linked you to here. The only problem is, you have to have a paid subscription to Westlaw to be able to click on source links and read the actual statutes.
Fortunately, we at The Veracity Report have a subscription and have copied and linked some of the relevant information for you to peruse in PDF form. We have replaced their links to Westlaw’s paid service with links to our own downloaded PDF versions of the information.
Georgetown’s Law Library classified information source list is:
Statutes Related to Classified Information
50 U.S.C. §§ 3161-3164 (Westlaw: 50 USCA §§ 3161-3164) (Lexis: 50 USCS §§ 3161-3164) (providing the procedural outlines for the classification of information and the safeguarding of classified information).
42 U.S.C. §§ 2161-2169 (Westlaw: 42 USCA §§ 2161-2169) (Lexis: 42 USCS §§ 2161-2169) (prescribe procedures for the classification and safeguarding of information related to nuclear weapons and atomic energy).
18 U.S.C. § 798 (Westlaw: 18 USCA § 798) (Lexis: 18 USCS § 798) (criminalizing the communication of classified information to an unauthorized person).
Freedom of Information Act of 1966 (FOIA), Pub. L. 89-554, 80 Stat. 383, codified as amended at 5 U.S.C. § 552 (Westlaw: 5 USCA § 552) (Lexis: 5 USCS § 552) (permitting nondisclosure of government information that is "(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order." 5 U.S.C. § 552(b)(1)).
Lastly, while I was investigating the complexities of classification and declassification law, I came across an article published by none other than The American Bar Association. In that article, they explain how Donald Trump didn’t publicly help himself by declaring on the Sean Hannity TV program that, as president, he could declassify documents “even with his mind.”
The sound bite sounds funny, but even the prestigious lawyers of the ABA went on to agree with him. Here is a direct quote from that article, which was published in October 2022:
“More than two months after FBI agents seized boxes of materials at former President Donald Trump’s Florida residence, known as Mar-a-Lago, the federal investigation continues amid conflicting legal interpretations of a president’s authority to declassify sensitive information.
“The federal classification of national security documents is used to control how officials handle information whose release may cause the nation harm.
“Trump added to the confusion when he said in an interview with Fox personality Sean Hannity, “There doesn’t have to be a process, as I understand it. ... If you’re the president of the United States, you can declassify just by saying it’s declassified. Even by thinking about it.”
“Most national security legal experts dismissed the former president’s suggestion that he could declassify documents simply by thinking about it. But as an ABA Legal Fact Check posted Oct. 17 explains, legal guidelines support his contention that presidents have broad authority to formally declassify most documents that are not statutorily protected, while they are in office.”
As I mentioned from the beginning, this is a lot of information. But now that we know what classified information is, why it's classified, how it's classified, and have a decent understanding of the laws surrounding the declassification of documents and the authority of various people and groups to do so and how we can finally begin to apply that knowledge to the circumstances surrounding these two presidents.
Element #2 – The comparison – Trump’s Documents vs Biden’s
A) The case against Donald Trump
In the first part of this series, we learned what SCIFs are, all about how they work, and how the flow of classified material into and out of them is regulated by the GSA.
In this part, we’ve learned a lot about classified material handling and both the processes for classification and declassification.
Now, we can apply what we’ve learned to the facts surrounding the Biden and Trump document cases.
First, we’ll start with trump’s case only because it was the first one, and really became the catalyst for all the crazy classified document hubbub.
With what we now know about a president’s authority to declassify documents at will, Trump may not make a very likable case for the declassification of the documents that were at Mar-a-Lago, but he doesn’t have to. According to every applicable law, there is simply no way to prove that he didn’t declassify every one of those documents. That’s because the law does not require him to mark the documents in any way, or to declassify them using any type of paperwork, be it official or otherwise.
It is because of that fact (not opinions), that there is no chance any prosecutor could make a sufficient case in front of a jury that Trump didn’t declassify all of those documents.
Remember, in any court of law here in America, the burden of proof rests on the prosecution, not the defense. In other words, Trump’s legal team doesn’t have to prove he declassified anything – but the prosecutor has to prove that he didn’t. And from what we now know, there is absolutely no way to do that.
B) The case against Joe Biden
As I explained in the first part of this series, these two cases really aren’t similar at all. I demonstrated that in the first element in part 1, which was explaining the fact that Joe Biden necessarily had to deal with negotiating his documents through a SCIF, while Donald Trump, as POTUS, did not.
That is a huge difference to be sure, but it’s far from the only one.
The second really major difference between these two cases is, as we just learned, that there is absolutely no way anyone could ever prove that Donald Trump did not declassify every document he had at Mar-a-Lago. We know this is true since no paperwork or document marking is legally required unless the declassified documents are headed for public display somewhere.
This is simply not the case in the Joe Biden situation because at the time these documents were removed from the SCIFs, Joe Biden was not the POTUS and had no legal authority to declassify them, nor any legal right to remove them from the SCIFs where he first viewed them – a very different scenario than that of former president Trump since there is no question that he was POTUS when these documents were brought to Mar-a-Lago and that he had every legal right and authority to declassify them at will.
When we combine those facts with what we learned in the first part of this series, that Trump had SCIFs installed both in New York City’s Trump tower and in the very same Mar-a-Lago estate where the documents were later seized by the FBI, we can begin to see any prosecutor’s dilemma in trying to win this case.
In the next installment of this 4-part series, Why Biden’s Document Situation is So Much Different Than Trump’s: Part 3 – Cooperation vs. Obstruction, we will look at the facts surrounding the alleged obstruction of Donald Trump instead of cooperating with the National Archives, vs. the reported cooperation being promised by the current White House Press spokespeople and Biden’s attorneys. In doing so, we will of course dissect the laws that govern obstruction, and we will also examine the facts surrounding how Biden’s documents were discovered in the first place, and how long it took for the facts of those findings to be made public.
Stay tuned for part 3, coming soon, and, as always, we welcome your interactions in the comments section.
Veracity Editor's Note:
This unbiased, non-satirical, fully attributed article was thoroughly researched by our team of fact-checkers and found to be accurate. The sources relied upon for the factual basis of this article were: CBS, CNN, The New York Times, The New York Post, Fox News, The Associated Press, Reuters, and veracityreport.org.
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