As he understands it
Sometimes the alibi just makes the crime worse. Trump on his “declassifying” prowess:
In his first TV appearance since a court-authorized search of his Florida home last month, Donald Trump reasserted Wednesday that any documents taken from the White House to Mar-a-Lago were declassified while he was in office, adding that a president can carry that out “even by thinking about it.”
“There doesn’t have to be a process, as I understand it,” Trump told Fox News host Sean Hannity.
Well, as he understands things isn’t a very good measure of the things. Also it’s the kind of thing he should have been very sure about, not the kind of thing he qualifies with a “could be wrong” disclaimer.
“If you’re the president of the United States, you can declassify just by saying it’s declassified,” the former president added.
“You’re the president — you make that decision.”
Yeeaahh no that’s not it. It’s not a perk, like you get to use the pool whenever you want to. It’s not something you get to do so that you can brag to your friends. It’s not something you get to do just because you want to take the documents with you in the golf cart.
He’s not actually wrong here. There is no review process, there is no one who can countermand it. A President decides to unclassify, and that’s it. The frivolous reasons you cite are more or less why it is catastrophically dangerous like Trump as President.
But the important point is that when a President decides to declassify, a process then happens. Who knows what it would have liked with the nature of some of these documents, but a declassification process happens. Either his instructions were not implemented and there is no record of those instructions, or they didn’t happen, but either way, these documents remained classified.
What doesn’t happen is a former President being able to go back and say ‘I meant to do that’. But of course, he didn’t. He held on to these documents in their classified state precisely because of that value.
Clearly in his free time Trump has been studying the philosophy of language, and more specifically speech act theory. He has taken Austin’s notion of performative speech acts, that is, speech acts which perform the act they are declaring (think of a justice of the peace saying “I declare you man and wife”), and extended it to thought, in the process creating a whole new subfield: thought act theory.
I look forward to his monograph.
Naif@1, that’s my understanding of it, too. Mind you, I’m skeptical of the notion that “no particular process is required” means that a president can accomplish it by mere thought without communicating it to anyone. There are plenty of examples in the law of things that someone has to right to do, but they still have to actually communicate it: for example, accepting a contract offer. Without doing any research on it, my gut is that a president or other official make binding legal decisions that aren’t communicated in some way, in part because of the incredibly difficult issues of proof involved.
Of course that’s all a red herring here anyway. Trump didn’t declassify those documents even “with a thought.” Sean Hannity isn’t going to ask the obvious follow-ups like why the declassification process wasn’t undertaken, why he or his lawyers didn’t raise this declassification defense during all the months they were corresponding with the government, whether it was prudent to declassify all of these documents, etc. But those are questions that Trump would have to answer if he actually tried to introduce evidence of this in pectore declassification.
Ooh, nice, I wasn’t aware of in pectore before.
Screechy,
The difference can be shown by the incident where Trump revealed highly classified information about ISIS to Lavrov in the Oval Office – and thereby compromised Israeli human intelligence sources. He cannot be charged with that, his act of revealing it not subject to any process.
But the assertion that he can do it in his mind is nonsensical. It is the essence of the classification system that an individual is allowed or not allowed to see the contents of a document. Classification is nothing more than a form of communication itself. If the President declassifies it ‘in his mind’, but does nothing else, the document remains classified – with all the attached penalties. There is no state ‘not actually classified, we all just think it is’. Conversely, when a document is classified, it becomes subject to a range of handling and tracking protocols. Any change of classification state is a process. The fact that the President has the prerogative to initiate a change in that state at a whim doesn’t mean there is no consequent process.
Not to mention that even if Trump magically thought the declassification into being, the documents STILL belong to the Executive branch, not to him personally.
Seriously, this is a good discussion about how things really work. But I have to add a thought I just read on Facebook. If Trump can declassify documents with his mind, then Biden can reclassify them with his.