Former Trump defense official Kash Patel told Fox News on Sunday that as president, Donald Trump could just “stand over a set of documents and say ‘these are now declassified'” and the documents would be declassified.
Patel was defending Trump after the FBI executed a search warrant at his Mar-a-Lago home and seized 11 sets of classified documents. They include documents identified as “Various classified/TS/SCI documents,” according to the inventory unsealed Friday. The list of items taken also notes that agents seized four sets of documents marked “top-secret,” three sets of documents marked “secret” and three sets documents marked “confidential.”
Since the raid, Trump and his allies have been claiming that he declassified the documents before leaving the White House.
“On the way out of the White House he issued further declassification orders declassifying whole sets of documents. And this is a key fact that most Americans are missing. President Trump, as a sitting president, has the unilateral authority for declassification,” Patel said on Sunday. “He can literally stand over a set of documents and say these are now declassified and that is done with definitive action immediately.”
While Patel is right that a president has the ability to declassify documents, it involves far more than standing over a set of documents and saying ‘these are now declassified.’
“He can’t just wave a wand and say it’s declassified. There has to be a formal process. That’s the only way the system can work,” Richard Immerman, a historian and an assistant deputy director of national intelligence in the Obama administration told NBC News.
Current and former intelligence officials familiar with the declassification process told CBS News that the process requires written documentation and several other steps.
To declassify documents, the White House counsel would draft a memo which the president would sign after consulting with the leadership of the agency or agencies in charge of the document to be declassified.
The leaders would be given an opportunity to provide their views on the declassification decision. This is where the president can decide to override any objections from the heads of the agencies if any are raised.
Once a final decision is reached, and the relevant agency receives the president’s signed memo, the physical document in question would be marked. The old classification level would be crossed out and the document would then be stamped, “Declassified on X date” by the agency in question.
“I’ve seen thousands of declassified documents. They’re all marked ‘declassified’ with the date they were declassified,” Immerman said.
That did not appear to be the case with the documents that were returned to the National Archives from Mar-a-Lago this year.
Patel, told Breitbart News in May that the documents previously recovered from Mar-a-Lago had been declassified by Trump, but their markings were not updated.
“The White House counsel failed to generate the paperwork to change the classification markings, but that doesn’t mean the information wasn’t declassified,”Patel said. “I was there with President Trump when he said ‘We are declassifying this information.'”
However, Bradley Moss, a lawyer who specializes in national security issues, said, “That’s not how it works.”
“Trump could say we’re declassifying this until he’s blue in the face, but no one is allowed to touch those records until the markings are addressed,” Moss said.
The search warrant unsealed on Friday identifies three federal crimes that the Justice Department is looking at as part of its investigation into Trump’s handing of classified documents: violations of the Espionage Act, obstruction of justice and criminal handling of government records.
