The president’s classification and declassification powers are broad
Experts agreed that the president, as commander-in-chief, is ultimately responsible for classification and declassification. When someone lower in the chain of command handles classification and declassification duties -- which is usually how it’s done -- it’s because they have been delegated to do so by the president directly, or by an appointee chosen by the president.
The
majority ruling in the 1988 Supreme Court
case Department of Navy vs. Egan -- which addressed the legal recourse of a Navy employee who had been denied a security clearance -- addresses this line of authority.
"The President, after all, is the ‘Commander in Chief of the Army and Navy of the United States’" according to Article II of the Constitution, the court’s majority wrote. "His authority to classify and control access to information bearing on national security ... flows primarily from this constitutional investment of power in the President, and exists quite apart from any explicit congressional grant."
Steven Aftergood, director of the Federation of American Scientists Project on Government Secrecy, said that such authority gives the president the authority to "classify and declassify at will."
In fact, Robert F. Turner, associate director of the University of Virginia's Center for National Security Law, said that "if Congress were to enact a statute seeking to limit the president’s authority to classify or declassify national security information, or to prohibit him from sharing certain kinds of information with Russia, it would raise serious separation of powers constitutional issues."
The official documents governing classification and declassification stem from executive orders. But even these executive orders aren’t necessarily binding on the president. The president is not "obliged to follow any procedures other than those that he himself has prescribed," Aftergood said. "And he can change those."
Indeed, the controlling executive order has been rewritten by multiple presidents. The current version of the order was
issued by President Barack Obama in 2009.
The national-security experts at the blog
Lawfare wrote in the wake of the
Post’s revelation that the "infamous
comment" by President Richard Nixon -- that "when the president does it, that means that it is not illegal" -- "is actually true about some things. Classified information is one of them. The nature of the system is that the president gets to disclose what he wants."
Two caveats
So Risch’s comment holds water when it comes to the extent of the president’s powers. But some experts said that Risch’s formulation leaves out some notable aspects of the particular case involving Trump.
The first caveat: While Trump has the power to declassify information, he doesn’t appear to have done that in this case, at least at the time the story broke.
"There’s no question that the president has broad authority to declassify almost anything at any time without any process, but that’s not what happened here," said Stephen I. Vladeck, professor at the University of Texas School of Law. "He did not, in fact, declassify the information he shared with the Russians, which is why the
Washington Post did not publish that information."
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