Thanks to the revelations about the material found at Mar-a-Lago, I have learned more about the arcane bureaucratic processes involving the various levels of classification and the processes by which they can be declassified than I ever wanted to know. This is because since classified documents were found on the premises, the initial defenses by Trump’s supporters, that the search was done as a form of harassment of a totally innocent person who had done nothing wrong, have collapsed and have kept shifting to more technical arguments.
This article explains what is going on, starting with the three kinds of classified documents found by the FBI.
FBI agents seized 11 sets of documents from Trump’s Palm Beach club on Monday, including documents identified as “Various classified/TS/SCI documents,” according to the inventory unsealed Friday. The list of items taken also notes that agents carted away four sets of documents marked “top-secret,” three sets of documents marked “secret” and three sets documents marked “confidential.”
These sets of documents range in classification levels, depending on the degree of their significance to U.S. national security. According to the federal regulations governing classification, “confidential” denotes the lowest rung. Information at this level could, if wrongly disclosed, cause “identifiable damage” to national security. “The next level, “secret” information, could cause serious damage to national security if wrongly disclosed. The “top secret” designation is reserved for material whose unauthorized disclosure could cause “exceptionally grave damage” to national security.
The “SCI” designation is an abbreviation for “Sensitive Compartmented Information” and refers to classified information involving sensitive intelligence sources, methods or analytical processes, and which can only be discussed within a “SCIF” — a “Sensitive Compartmented Information Facility” — a secure room or building limited to government officials with a corresponding security clearance.
It is the “classified/TS/SCI” documents that are likely to be most problematic because they are considered to be so sensitive that even those with appropriate security clearance can only read them in a secure facility known as a SCIF room.
SCIFs can be either permanent or temporary and can be set up in official government buildings (such as the Situation Room in the White House), onboard ships, in private residences of officials, or in hotel rooms and other places of necessity for officials when traveling. Portable SCIFs can also be quickly set up when needed during emergency situations.
Access to SCIFs is normally limited to those individuals with appropriate security clearances. Non-cleared personnel in SCIFs must be under the constant oversight of cleared personnel and all classified information and material removed from view to prevent unauthorized access. As part of this process, non-cleared personnel are also typically required to surrender all recording, photographic and other electronic media devices. All of the activity and conversation inside is presumed restricted from public disclosure.
So storing these documents in the basement of your home is reckless and a clear violation of the rules.
What about the claim that the documents had all been declassified by Trump? As with any government bureaucracy, there are steps that need to be taken to do such a thing.
First, a U.S. president does have uniquely sweeping declassification abilities, though there is a process that involves written documentation and several other steps.
It’s not the case that a president can declassify documents with just verbal instructions. His instruction to declassify a given document would first be memorialized in a written memo, usually drafted by White House counsel, which he would then sign.
Typically, the leadership of the agency or agencies with equities in the document would be consulted and given an opportunity to provide their views on the declassification decision. As the ultimate declassification authority, however, the president can decide to override any objections they raise.
Once a final decision is made, and the relevant agency receives the president’s signed memo, the physical document in question would be marked — the old classification level would be crossed out — and the document would then be stamped, “Declassified on X date” by the agency in question.
These documents clearly did not have the appropriate markings, so Trump’s defenders now claim that they were appropriately declassified but that bureaucratic incompetence led to them not being suitably marked. They have thrown White House counsel Pat Cipollone under the bus, no doubt as payback for him testifying before the January 6th committee.
“The White House counsel failed to generate the paperwork to change the classification markings, but that doesn’t mean the information wasn’t declassified,” former Trump defense official Kash Patel told Breitbart in May, regarding other material that had earlier been removed from Mar-a-Lago. “I was there with President Trump when he said ‘We are declassifying this information.'”
Nice try, Kash, but that won’t fly. Trump’s spoken words are not like a Hogwarts spell that can be used to magically achieve the desired effect. It should also be borne in mind that Kash Patel is one of Trump’s band of nutty advisors, right up there with Rudy Giuliani and Sydney Powell and the pillow guy, all brazen liars like their hero, whose words simply cannot be trusted. Cipollone is also undoubtedly a Trump loyalist but during his testimony did not strike me as lackadaisical or incompetent. In fact, he seemed to be quite concerned with preventing Trump from doing anything that might give the image of impropriety that could harm him. He will undoubtedly be questioned about his role in all this.
Finally, offenses could well have been committed even if the documents had been declassified.
As the New York Times points out, none of the statutes cited in the warrant rely on whether the records were classified or not. The search warrant signed by the Florida magistrate judge entails items “illegally possessed in violation of 18 U.S.C. § § 793, 2071, or 1519.”
That first code, Section 793, and more commonly known as the Espionage Act, applies to defense information. It applies, for instance, to material illegally removed “from its proper place of custody” or that is lost, stolen or destroyed.
The next statute, Section 2071, bans concealing, removing, mutilating or destroying records filed with U.S. courts. And the final one, Section 1519, prohibits concealing, destroying or mutilating records to obstruct or influence an investigation.
All in all, this looks bad for Trump and raises once again the question that I have repeatedly asked: What the hell was he thinking in taking these documents? On the surface, the risk-reward balance seems hopelessly out of whack in that the risk was great and the reward, at least on the surface, zero..
The last line of defense is likely to be that in the hectic days prior to leaving the White House, his aides just put stuff into boxes willy-nilly without even looking at them. That still would not explain the presence of the classified/TS/SCI documents though, since those are not supposed to be just lying around, even in the White House.
UPDATE: In. the event that Trump is criminally charged, ignorance of the law is not a valid defense though it can be used as a mitigating factor when it comes to sentencing. In Trump’s case, insanity may be a plausible defense though I cannot see him making it.
He thinks rules are for little people, which is everyone but him. Malignant narcissists really are that simple. It’s no different than the psychology of alcoholism. Tfg is a textbook dry drunk. Abusive, manipulative, and a habitual liar.
Alan G. Humphrey says
SCI -- Sensitive Compartmented Information
The reason these documents can’t be described in an unclassified manner is because the envelope has a code word stamped on it associating the contents with their compartment. Those code words are themselves classified, so trying to describe the envelopes without using the code words can lead to ambiguity when multiple documents are involved.
Matt G says
Let us say, for the sake of argument, that these documents have been properly declassified. *For what possible reason did he deem them material he needed to have in his possession?* Souvenirs? Bedtime reading? Simple spite? Or something more sinister, like material which would give him leverage in any dealings with foreign powers.
It’s really a grotesque pickle, the like of which only Mangolini could have created. I mean, every time he does a boo-boo, the next one is guaranteed to be ten times worse.
About his intentions, I would place stupidity above all, with greed and spite a bit behind. He really does not know what he’s doing, and would not care if he did.
Consequences? Who knows, depends on how interested the justice system is going to be in pursuing the matter. Concerning Mangolini, such interest has always been a biiiit on the sluggish side, both before and after his being prez.
But it will be interesting to see if the law-and-order party (so concerned about things like, say, e-mails) will abet whole boxes of “Geheime Kommandosache” docs suddenly growing legs and running every which-a-way.
The prevailing theory I have heard from Trump sycophants is that the FBI is just inventing things that they found at the place, or have since placed them in the boxes back at HQ.
Trumps in deep water over this. It isn’t something he can bluster, stall or countersuit his way out off. Depending on what he did with the classified information he could be guilty of espionage or treason. Normally if something like that was in the works for such a public figure I would expect a deal. Keeping the details private both for security and publicity reasons. I’m not sure how such a thing could be done with Trump though because he can’t be trusted to keep his end and retire quietly doesn’t seem possible.
What I find amusing about the situation is watching liberals who normally complain about the government over classifying information and over charging people for making information public suddenly supporting the FBI charging Trump hard without really knowing what the charges are over. At the same time conservatives that normally want the FBI using lethal force instead of legal charges for this sort of thing suddenly think the FBI needs investigated for political interference and wonder if the FBI planted some of the documents. The total flip on the extremes of both sides is funny.
Marcus Ranum says
What I find amusing about the situation is watching liberals who normally complain about the government over classifying information and over charging people for making information public suddenly supporting the FBI charging Trump hard without really knowing what the charges are over.
Odd you say that, because it’s right in the warrant. Trump had government property, was asked to return it, refused, and the AG sent the FBI in to get it. The warrant listed some of the things, and Trump’s lawyer signed the reciept for what they took. There is not argument regarding those facts. Did you notice I didn’t mention secret documents? Why is that? Because the warrant was for a bunch of government property, some of which might be classified. He’s already committed multiple felonies just on the issue of government property he has refused to return. Then there is the items of possible national security interest (more felonies, and bigger ones) again possibly including top secret documents. But if Trump had meeting notes scribbled on a napkin, for certain classified briefings, that’s all felonies -- no need for TS/SCI folders to appear on the scene. Of course TS/SCI folders add more years to the sentence.
The warrant says violations of the espionage act, not “mishandling of classified materials” -- Trump never disputed his possession of those materials in fact. Basically, he is fucked. The question is whether Garland pulls the “flush” lever or just lets Trump spend the remaining years of his life swimming around hoping nobody pulls that lever.
Biden should pardon him. For the lulz. But not include the espionage part on the pardon, “just keeping my hand on this lever…”
Marcus Ranum says
supporting the FBI charging Trump hard without really knowing what the charges are over.
There aren’t any charges, so of course everyone is hypothesizing. And it is entirely appropriate to do so.
I would support the DOJ slamming Trump’s fingers in the door simply because he is an odious creep who got elected because the FBI kept investigating Clinton for the crimes Trump has just effectively admitted to committing. I am amused. And there is nothing wrong with being amused at Trump’s comeuppance coming up.
The warrant says that the search is pursuant to violations of the espionage act (and other things) we don’t know if he’ll be charged but I will laugh long and hard if he is.
If your comment was somehow intended to wag a stern finger of disapproval at “liberals” who want to see Trump get slammed, it was a pretty incompetent defense.
@7 Marcus Ranum: I’m not defending him. If the rumor that the information includes a list of non-American spies that are paid by the US is true and Trump sold or even just exposed that list to other countries firing squads are not out of the question,
At the other extreme, the secret part could be the NSA getting the UK to spy on Americans in ways that it would be illegal for the NSA to do directly. It wouldn’t be the first time they have been caught doing things like that. If that is the case this could be the NSA and FBI cleaning up after themselves before Trump intentionally or accidentally reveals they are breaking the law again.
The information right now leans towards the first over the second. What I find funny about the flip flopping is that it shows just how many at both ends of the political spectrum are primarily party loyalists rather then following principle.
Haven’t we known for years (I guess “assume with significant confidence” is more accurate) that the CIA/NSA/FBI has been using the “five -- eyes” organization/cooperation (U.S.A., Canada, U.K., Australia, New Zealand) to basically side-step the toothless laws/policies about the US Government agencies spying on civilians directly?
Pretty much nobody cares about that, and those who do are labeled as hating America, being terrorists, etc. That ship sailed some 21 years back, maybe even earlier…
I’d say it’s interesting how red-hats can ignore so much of reality and past behavior to try and portray their god-emperor in some sort of good light, but it’s not. It’s just fucking tiresome at this point, and while I still don’t know specifically what’s wrong with red hatters, I just want them to shut up and go away.
And that’s not going to happen either, so I’ll take what enjoyment I can from antifa punching them out at their various nazi sub-group rallies.
JM wrote @6,
I think that’s probably the really frustrating part of it for the DOJ. I suspect that they have, on occasion, had to remind some state official that some of the documents in their keeping are government property and need to be returned.
I also suspect that usually the person involved returns them. Or if there is a delay, and multiple reminders, a request to allow agents to collect the documents from the site. Finally, if the DOJ gets tired of waiting, they will ask for a warrant to collect the documents. Based on the length of time these documents were in Trump’s possession, I suspect that this whole kurfluffle went that route.
But if the DOJ reaches the stage of issuing a warrant, they probably want to keep it quiet. No need to embarrass someone who may just be a lazy idiot and who might have some political clout to retaliate at some point.
No one would have known about the warrant if Trump hadn’t complained about it. There may have been rumors, but the DOJ is notorious for being closed-mouth about things like this.
Trump was caught retaining government documents, some classified, which belong to the government and cannot be owned/controlled by a private citizen. There is no way Trump obeyed the law here. Trump broke the law, was told he was breaking the law, and was still given plenty of opportunities to “make it right” by returning the documents. It is still possible that the DOJ will not press charges, but not as likely since Trump went public with the story. Trump took a problem which he created, and made it worse for him. So, I guess, par for the course.
Marcus Ranum says
Haven’t we known for years (I guess “assume with significant confidence” is more accurate) that the CIA/NSA/FBI has been using the “five — eyes” organization/cooperation (U.S.A., Canada, U.K., Australia, New Zealand) to basically side-step the toothless laws/policies about the US Government agencies spying on civilians directly?
Yup. It’s called the New York reach-around.