Why Donald Trump’s declassification claim might not be that outlandish
Why Donald Trump’s declassification claim might not be that outlandish
The Scooter Libby case under George W. Bush showed that presidents can declassify materials without a clear paper trail.
As in Scooter Libby’s case, there are other charges that could be brought against Donald Trump besides those dealing with classified information. | Julia Nikhinson/AP Photo
By JOSH GERSTEIN and KYLE CHENEY
08/15/2022 07:50 PM EDT
FormerPresident Donald Trump claims to have verbally declassified the sensitive records the FBI seized from his Mar-a-Lago compound. It’s not as unprecedented or outlandish an argument as widely believed — if he can prove it happened.
Nearly 20 years ago, Justice Department prosecutors wrestled with the vexing question of whether President George W. Bush and Vice President Dick Cheney could unilaterally authorize Cheney’s chief of staff Scooter Libby to leak to select journalists the key findings of a then-highly-classified intelligence community-wide report on Iraq’s efforts to acquire weapons of mass destruction.
Libby’s claim of the direct but unrecorded disclosure order from Bush and Cheney may have contributed to a decision by Special Counsel Patrick Fitzgerald not to charge Libby with releasing classified information to New York Times reporter Judith Miller and others.
Instead, in 2005,Fitzgerald brought perjury and obstruction of justice charges against Libby, forgoing any charge over the release of the National Intelligence Estimate findings or over the issue Fitzgerald was named to investigate: whether anyone in the Bush White House or elsewhere in government leaked the identity of CIA operative Valerie Plame to journalists.
“The Libby case might have been the first time in memory that the question of unilateral presidential declassifications arose,” said Steven Aftergood, a leading authority on classified information policy. “It was giving one-time permission to a particular individual to disclose information to another particular individual … It highlights the fact that the president purports to, or does, stand outside of the classification system.”
The Libby case is not an apples-to-apples parallel to the current dispute over Trump’s handling of classified materials, but it shows that past prosecutors have seen some nuance in exactly how a president may be able to declassify information without a clear paper trail.
