Why Donald Trump’s declassification move on Russia docs is so incredibly unusual

Posted at 1:18 PM, Sep 18, 2018
and last updated 2018-09-18 15:55:58-04

On Monday night, the White House announced it would declassify a series of documents and text messages related to the roots of the Justice Department’s Russia investigation. It was the latest move by President Donald Trump to expose what he believes to be a “deep state” conspiracy against him within the federal bureaucracy and to reveal that the special counsel probe led by Robert Mueller should have never been launched.

In search of some guidance — both on Trump’s move and what it might uncover — I reached out to Carrie Cordero, a senior fellow at the Center for a New American Security and a CNN legal analyst. Our conversation, conducted via email and lightly edited for flow — is below.

Cillizza: Let’s start basic. The President has unilateral power to declassify any information he likes? How and why?

Cordero: At the most basic level, the president has authorities granted by the US Constitution, including broad authorities as they relate to national security. He is the commander in chief. He also is the head of the executive branch of the US government. Accordingly, he runs the military and the intelligence community, which means that he is the decision maker for how the agencies handle information, including classified information.

As a practical matter, however, a president is not usually personally engaged in classification decisions, except in the most extraordinary circumstances. Since 2004, with the creation by law of the Office of the Director of National Intelligence, the most senior official below the president who has top classification or declassification authority is the Director of National Intelligence (DNI). Below the DNI, senior officials within the intelligence community have classification or declassification authority. And then, at further levels down, there are government officials who are known as “official classification authorities.” These officials have been granted authority to make decisions about classification that have been delegated to them.

Cillizza: What exactly will be declassified? Are we talking about the potential for sensitive Information to be released?

Cordero: The newest batch of information has not actually been released yet, so it is difficult to judge exactly what its content will be. But based on the information provided by the White House press secretary, one category of information will include Foreign Intelligence Surveillance Act (FISA) applications. FISA is the legal framework under which the executive branch conducts surveillance and searches for foreign intelligence purposes — in other words, investigative activities to catch terrorists and spies.

At a high level of generality, FISA applications could contain investigative information obtained through a variety of sources, including sensitive technical (like wiretaps) and human sources, as examples. Sensitive information could be released, but it is also possible that information will be redacted. We’ll have to see what gets released. Other information — such as the text messages between the FBI employees — are probably not classified, although there are other good reasons not to release those messages publicly.

There are also reports that FBI interview notes or documents — sometimes referred to as 302s — might be released. These types of investigative documents can be provided to opposing counsel in the context of a criminal prosecution, for example during discovery. But releasing them publicly, especially when there is an ongoing investigation being conducted by the special counsel and FBI into Russian interference in the 2016 election, strikes me as highly inappropriate. Investigative files concerning ongoing investigations are not even usually produced to Congress under closed oversight proceedings, let alone released publicly, when an investigation is ongoing.

Cillizza: Is there a review process of the materials before they are released? If so, who conducts it and how are decisions made about if anything is withheld?

Cordero: Yes, normally there would be a review process for classified information before it is declassified and released publicly. If involving FISA information or FBI investigations, that review would be conducted by the Justice Department and the FBI, in consultation with the Office of the Director of National Intelligence. If the documents contain information collected or analyzed by other intelligence community agencies, then those agencies would be consulted as well. Declassification reviews often are time-consuming and involve heavy inter-agency coordination. Substantial care is usually taken by the agency personnel involved in the declassification reviews because the consequences for inadvertently releasing classified information can lead to revealing capabilities to foreign adversaries, and/or reducing the effectiveness of investigative techniques.

Cillizza: Put this move by Trump in some context. Have past presidents done anything like this or is this unprecedented?

Cordero: As noted above, in the modern history of the intelligence community, it is extraordinary for a president to be involved in day-to-day declassification decisions. An example where a president might be personally engaged in a declassification decision would be if he deemed it in the public interest to release information about a pending terrorist threat in the homeland. Or, if a president authorized the release of information in a public setting to explain intelligence information supporting a decision to engage in military activities. Those would be legitimate reasons for a president to order the declassification of information that is in the public interest. Alternatively, in recent years, we have seen the DNI make decisions to declassify information in the public interest to facilitate congressional and public debate over surveillance authorities, and to improve transparency about intelligence collection legal authorities and activities.

My assessment is that what we are seeing this week, and this past year, is different, for at least two reasons. First, the information being declassified involves FISA information. Up until the existence of the Carter Page, FISA applications was revealed publicly, and then the documents themselves were released in redacted format, FISA applications had never been released publicly before. This dates back to FISA’s original enactment in 1978.

In fact, in numerous criminal prosecutions for terrorism and espionage related cases over the past four decades, whenever defendants sought access to the applications, the government successfully argued before federal courts that the applications were too important to national security to be provided to defense counsel. Similarly, the government had not released FISA application pursuant to requests made through the Freedom of Information Act. So, an important threshold has been crossed over this past year.

Second, I question the justification for the recent releases. The standard, according to policy and precedent, is that the release should be in the public interest. In the current situation, it is hard for a neutral observer to identify a legitimate public interest at this point in further declassifications of the Page FISA documents, other than to support a political narrative that the FBI or DOJ conducted investigative activities inappropriately. That political narrative of alleged abuse has not been borne out, however, by prior releases.

Cillizza: Finish this sentence: “What we will learn from this declassification is ________.” Now, explain.

Cordero: “What we will learn from this declassification is not much that is related to national security.”

There may be some more things that are mildly embarrassing to the individuals or agencies involved, but that will add little to the public’s understanding of the work the institutions do. Assuming the President does permit the agencies to redact the documents before releasing them, then there may not be much information that is revealed that is truly illuminating from a national security perspective.

On the other hand, more text messages that were between two FBI employees that do not contain classified information but are similar to prior messages that were released, may very well fulfill the political goal of throwing shade at the bureaucracy.