OPINION:
President Donald Trump cited his constitutional authority to declassify documents years before he left office in January 2021 with boxes of papers he says he designated as no longer secret.
Instead of being an ad hoc legal argument cooked up to fend off a Biden Justice Department criminal probe, the presidential option to declassify was cited by Mr. Trump in making public one of the most important documents in the Trump-Russia saga known as “Russiagate.”
Go back to 2017, the year of the Christopher Steele dossier and the giddy way Democrats flaunted it to bring down Mr. Trump.
Then-House Intelligence Chairman Devin Nunes launched a staff investigation into how the FBI was capitalizing on Mr. Steele’s collection of supposed Trump crimes to investigate the entire election campaign. Mr. Steele sent FBI agents scampering by writing that a well-developed conspiracy existed in 2016 between Mr. Trump and the Kremlin. It did not.
The Nunes investigation, led by staffer Kash Patel, went totally against the Washington establishment and against a D.C. media favorite, current intelligence chair Adam Schiff, California Democrat. He embraced the unverified dossier and Mr. Steele.
On Feb. 2, 2018, the fruits of the Mr. Nunes investigation rocked Washington. Mr. Trump released his memo along with a cover letter from White House Counsel Donald F. McGahn II who invoked the president’s right to declassify.
“The Constitution vests the president with the authority to protect national security secrets from disclosure,” Mr. McGahn wrote to Mr. Nunes. “As the Supreme Court has recognized, it is the President’s responsibility to classify, declassify, [italics added] and control access to information bearing on our intelligence sources and methods and national defense.”
He added, “The Committee’s request to release the Memorandum is interpreted as a request for declassification pursuant to the president’s authority… Though the circumstances leading to the declassification through this process are extraordinary, the Executive Branch stands ready to work with Congress to accommodate oversight requests consistent with applicable standards and processes, including the need to protect intelligence sources and methods.”
In the letter, Mr. McGahn pointed to the same 1988 Supreme Court decision—Navy v. Egan—Mr. Trump’s supporters are citing today in arguing he did not break the law by taking documents to his Mar-a-Lago home.
That Supreme Court’s 5-3 opinion dealt with a decision by the Navy to deny a submarine repair worker a security clearance, meaning no access to classified material. But because the court’s opinion addressed presidential power, Navy v. Egan took on a far more important legacy.
Here is the key Supreme Court phrase:
“The President, after all, is the ‘Commander in Chief of the Army and Navy of the United States.’ U.S. Const., Art. II, 2. His authority to classify and control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position in the Executive Branch that will give that person access to such information flows primarily from this constitutional investment of power in the President and exists quite apart from any explicit congressional grant.”
“The authority to protect such information falls on the President as head of the Executive Branch and as Commander in Chief,” the court said.
Mike Davis, who was Republican Sen. Chuck Grassley’s chief counsel for nominations to the Senate Judiciary Committee, said this ruling allowed the outgoing President Trump to declassify papers. He also said Mar-a-Lago is equipped to safeguard such records.
“The president has constitutional authority as commander in chief to classify or declassify any records he wants for any reason,” Mr. Davis said on Fox News. “He doesn’t have to record it. That’s his authority as confirmed by the Supreme Court in [1988] Department of the Navy versus Egan. Every former president has an ’Office of Former President’ paid for by the federal government. They get staff. They get office space. They get secure facilities… for classified materials. They get security clearances. They get Secret Service protection. These Trump facilities are swept by the Secret Service for bugs. These are very secure documents. “
Former Trump White House aide Patel has said that Mr. Trump declassified documents in the last days of his tenure, but they did not go through the bureaucratic process of stripping “secret” labels.
Thus, Mr. Trump’s legal argument is, that the Supreme Court said I could do it.
And what did the public learn when in 2018 Mr. Trump exercised his power to declassify the Nunes memo?
They learned for the first time that the FBI, which has been on a quest to target Mr. Trump since 2016, relied on the shoddy Steele dossier to convince judges to OK a series of wiretaps on campaign volunteer Carter Page. The FBI did not tell judges that the Hillary Clinton campaign and the Democratic Party funded Mr. Steele’s anti-Trump 35-page report. And Mr. Steele misled the FBI when he denied talking to the press. In reality, he fed them lots of fake news.
On Aug. 8, FBI agents raided Mr. Trump’s home, rummaging through his office, bedrooms and closets. They collected papers that might be considered personal, and under the former president’s sole control, as opposed to presidential items.
He did not need Navy v. Egan to retain FBI-seized tax records, magazine articles, books, and clothing—unless Attorney General Merrick Garland was on a fishing trip.
• Rowan Scarborough is a columnist with the Washington Times.
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