Telepathic Declassification

Former President Trump recently suggested that the sitting President simply needs to “think” something is declassified in order to declassify it. Is there a cascade of increasingly formal ways to declassify? Perhaps:

  • Think the information is declassified
  • Tweet an order that the information is declassified
  • Write up and sign a formal Presidential order to declassify the information

None of these are enough. The Government withholds information to comply with laws as well as to protect classified information. Lots of unclassified information is illegal for the Government to publish.

The whole classified vs. unclassified question is overblown. The laws forbid mishandling various types of information regardless of whether it’s classified or not.

For example, some types of federal grand jury information is illegal to publish but still unclassified. Under the Espionage Act, it is illegal to privately collect sensitive defense information regardless of whether it’s classified or not. (This poses a serious civil liberties challenge, but that’s another issue).

Two years ago, former President Trump tweeted an order to declassify everything related to investigations of former Secretary Clinton’s email server and of Russian election interference, including the Mueller report:

I have fully authorized the total Declassification of any & all documents pertaining to the single greatest political CRIME in American History, the Russia Hoax. Likewise, the Hillary Clinton Email Scandal. No redactions!

Donald J. Trump (@realDonaldTrump) October 7, 2020

Buzzfeed and CNN promptly filed an emergency motion in federal court demanding the release of Muller report documents. The FBI responded, saying tht the tweet did not direct the declassification or release of any specific documents. The White House also provided a letter reiterating this position.

Government employees under Civil Service are obliged to follow the law. If it forbids disclosing information, then they’re not going to do it. When agencies do obviously bad things, like “spying on Americans,” it’s always based on some lawyer’s interpretation of how it might be legal.