Presidents, Congress, and Classified Information: The Constitutional Limitations and Processes Required to Declassify Information

Authors

Nick Dunard

Abstract

On August 8 2022, the Federal Bureau of Investigation executed a search warrant at former President Donald Trump’s Mar-a-Lago Resort. The search uncovered hundreds of documents bearing various classification and governmental markings. On June 8, 2023, Trump was indicted in the Southern District of Florida on thirty-seven counts of unlawful retention of national defense information. Almost immediately after the search, the former President and his allies advanced a theory that Trump’s retention of classified documents was permissible because he had declassified the documents before leaving office on January 20, 2021. The former President has repeatedly mentioned these arguments in both civil and criminal litigation following the search, but has provided no evidentiary support for his contentions that he declassified the documents. While other aspects of the search warrant and criminal case have been adjudicated by the Eleventh Circuit and Supreme Court, no court has yet addressed the merits of the declassification defense. This Note will examine the propriety of former President Trump’s claims that he cannot be criminally charged with unlawful retention of national defense information because the information was declassified. First, it will examine the historical and Constitutional background of the executive classification system, including judicial precedents interpreting the scope of the power. Next, it will introduce parallel statutory frameworks that Congress has enacted to criminalize the retention of classified information, automatically classify certain types of information, and establish guidelines for the handling of Presidential records. Considering the concurrent authorities of the Executive and Legislative branches over classified information and government records, the Note will then analyze the merits of former President Trump’s claimed powers to declassify and retain classified documents as of right. It will conclude that a President does not have the plenary power to declassify all types of classified documents, and that any declassification must comply with established procedures to be effective. Lastly, the Note will conclude that based upon publicly available information, former President Trump did not follow any such procedures that would have led to the documents being properly declassified before he left office.

Recommended Citation

Nick Dunard, Presidents, Congress, and Classified Information: The Constitutional Limitations and Processes Required to Declassify Information, 73 Cath. U. L. Rev. 624 (2024).
Available at: https://scholarship.law.edu/lawreview/vol73/iss4/8