Despite Trump's claims, experts say there's no 'magic wand' for a president to declassify documents
Former President Donald Trump isn't the first White House veteran to claim amid a criminal probe into their handling of government secrets that the president can release almost anything he wants, when he wants, however he wants.
"If the President says he should talk about [a] document, then it's a declassified document," then-Vice President Dick Cheney's former chief of staff, Lewis "Scooter" Libby, told a federal grand jury in 2004 no... Process that must be gone through according to the lawyer.”
At the time, federal investigators were investigating the leak of the identity of an undercover CIA agent — but they were also interested in learning more about how parts of a classified document summarizing Iraq's alleged efforts to acquire weapons of mass destruction in Africa had also become public.
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Libby admitted to investigators that he "showed" portions of the Iraq document to a New York Times reporter, but insisted that then-President George W. Bush had "already declassified" those portions by giving Libby permission to share them with the press .
When transcripts of Libby's testimony were later released, it sparked public debate about how presidents can -- and should -- exercise their declassification powers.
"If the President determines that classified information can be released...can that replace the declassification process?" a reporter asked White House spokesman Scott McClellan on April 7, 2006.
"The President has the authority to release information in his sole discretion," McClellan replied without giving further details.
PHOTO: Scooter Libby attends a bust unveiling ceremony of former Vice President Dick Cheney in Washington December 3, 2015. (CQ-Roll Call, Inc via Getty Images, FILE)
Nearly two decades later, after FBI agents last week executed a search warrant on Trump's Mar-a-Lago estate and removed several sets of classified documents, there's still little clarity as to what - if anything - a president was doing in front of a government must do Secret that he wants to reveal is no longer considered secret.
For most government employees who desire the release of information, their requests must go through a rigorous review process that can involve the entire US intelligence community to ensure sources, methods, and other national security interests are protected. "[But] there is no formal process that a president has to follow when releasing information," Brian Greer, a former CIA attorney who specializes in classification issues, told ABC News.
Nonetheless, according to Greer, "there must be evidence that a declassification order occurred." And in Trump's case, "the Trump team has yet to come up with credible evidence," he said.
In January, National Archives officials recovered 15 boxes of records that had been improperly taken to Mar-a-Lago when Trump left the White House last year -- then, two months ago, federal agents visited Mar-a-Lago for additional material to get that they believed Trump had failed to throw up. Shortly after that visit, an attorney for Trump signed a statement saying that all classified documents at Mar-a-Lago had been turned over to federal investigators, sources familiar with the matter told ABC News. However, authorities believed Trump continued to possess classified documents, leading to last week's raid.
It's unclear what records were seized from Trump's home last week, but court documents filed by the Justice Department indicate it is investigating, among other things, possible violations of the Espionage Act, making it a crime to disclose sensitive national security information that could harm the United States - even if it's not secret.
PHOTO: Authorities stand outside Mar-a-Lago, the residence of former President Donald Trump, amid reports of the FBI executing a search warrant as part of a documents investigation in Palm Beach, Fla. August 8, 2022. ( Jim Rassol/EPA -EFE/Shutterstock)
Following the raid, Trump's team issued a statement to a media outlet, alleging that while Trump was still in office, he "entered a standing order that documents removed from the Oval Office and brought to the residence be in were deemed declassified the moment he removed them." Taking to social media, Trump himself insisted that the documents in Mar-a-Lago were "all declassified."
"The President is the ultimate classifier and declassifier — but he can't just wave a magic wand, and he can't do it in secret," said Douglas London, a 34-year CIA veteran and author of The Recruiter: Espionage and the lost art of American intelligence."
"So when [Trump] and his allies defend his handling of these documents by claiming they are no longer classified, they have to show the paper trail," London said.
Jeh Johnson, who served as chief defense attorney before becoming Secretary of Homeland Security under the Obama administration, agreed in an article he published for Lawfare.
"[Part and package] of an act of declassification is communicating that act to everyone else who has the same information, across all federal agencies," Johnson wrote. “This point applies whether the information is in a document, an email, a PowerPoint presentation, or even in the mind of a government official. Otherwise what would be the point of a legitimate declassification?”
PHOTO: Former US President Donald Trump speaks at the Conservative Political Action Conference in Dallas, August 6, 2022. (Brandon Bell/Getty Images)
Accordingly, Johnson said, the Trump team's claim of a "standing order" that all documents brought to Trump's home were therefore "declassified" is "downright ridiculous."
In Libby's case, no information was released to confirm that Bush gave Libby permission to share classified information with a reporter - but at the time the Bush administration wanted to release the information more widely and had launched an interagency review to do so declassify.
Amid mounting questions about the developing war in Iraq, Bush and his allies wanted to back up previous claims that the Iraqi regime was attempting to acquire weapons of mass destruction in Africa. These allegations had come under intense scrutiny at the time, after the former ambassador dispatched to investigate Iraq's alleged efforts, Joe Wilson, publicly announced that he had found no evidence to support the Bush government and accused US officials of exaggerating the intelligence agencies.
"And so the vice president thought we should get some of those facts out to the press," Libby testified before the grand jury. "But before that could happen, the document [which summarizes the intelligence agencies' conclusions] had to be declassified."
Libby said Vice President Cheney "then committed to getting permission from the President to speak to a reporter about it." He got permission. Told me to go and talk to the reporter."
Ten days after Libby's meeting with the New York Times reporter, the US government released the document known as the National Intelligence Estimate.
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"What do you say to critics who argue that the president's decision to release this information effectively declassified it... was a political use of intelligence?" a reporter asked White House spokesman McClellan after the document was released.
"It was in the public interest that this information be made available," McClellan said.
Libby was eventually charged - and convicted - of something else: lying to the grand jury and federal investigators about his role in leaking the identity of Wilson's wife, Valerie Plame, who was an undercover CIA agent. Libby was sentenced to more than two years in federal prison, but his sentence was commuted by Bush in 2007 before Bush left office.
He was then fully pardoned by Trump in 2018.
ABC News' Alex Mallin and Will Steakin contributed to this report.
Despite Trump's claims, experts say there is no "magic wand" for a president to declassify documents originally appearing on abcnews.go.com
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