From Trump's court filing to his handpicked judge,
Microsoft Word - DJTUSA MTStay OPP FINAL.docx
12/21
"The Government does not contest—indeed, it concedes—that the President has broad authority governing classification of, and access to, classified documents. [ECF No. 69 at 10, 18 (quoting Dep’t of Navy v. Egan, 484 U.S. 518, 529 (1988))]. In fact, the Government advocates that “the protection of classified information must be committed to the broad discretion of the agency responsible, and this must include broad discretion to determine who may have access to it.” [ECF No. 69 at 18 (quoting Egan, 484 U.S. at 529)]. Congress provided certain parameters for controlling classified information but primarily delegated to the President how to regulate classified information. 50 U.S.C. § 3161. At the same time, Congress exempted the President from complying with such requirements. See id. § 3163 (“Except as otherwise specifically provided, the provisions of this subchapter shall not apply to the President . . .”).
President Obama enacted the current Executive Order prescribing the parameters for controlling classified information in 2009. See Exec. Order 13526 (Dec. 29, 2009).
That Executive Order, which controlled during President Trump’s term in office, designates the President as an original classification authority. See id. § 1.3(a)(1). In turn, the Executive Order grants authority to declassify information to either the official who originally classified the information or that individual’s supervisors—necessarily including the President. § 3.1(b)(1), (3). Thus, assuming the Executive Order could even apply to constrain a President, cf. 50 U.S.C. § 3163, the President enjoys absolute authority under the Executive Order to declassify any information. There is no legitimate contention that the Chief Executive’s declassification of documents requires approval of bureaucratic components of the executive branch. Yet, the Government apparently contends that President Trump, who had full authority to declassify documents, “willfully” retained classified information in violation of the law. See
18 U.S.C. § 793(e); [ECF No. 69 at 9].7 Moreover, the Government seeks to preclude any opportunity for consideration of this issue.
7 Of course, classified or declassified, the documents remain either Presidential records or personal records under the PRA. .."
Trump is not POTUS,
obamawhitehouse.archives.gov
"..Sec. 4.4. Access by Historical Researchers and Certain Former Government Personnel.
(a) The requirement in section 4.1(a)(3) of this order that access to classified information may be granted only to individuals who have a need to-know the information
may be waived for persons who:
(1) are engaged in historical research projects;
(2) previously have occupied senior policy-making positions to which they were appointed or designated by the President or the Vice President; or
(3) served as President or Vice President.
(b) Waivers under this section
may be granted only if the agency head or senior agency official of the originating agency:
(1) determines in writing that access is consistent with the interest of the national security;
(2) takes appropriate steps to protect classified information from unauthorized disclosure or compromise, and ensures that the information is safeguarded in a manner consistent with this order; and
(3) limits the access granted to former Presidential appointees or designees and Vice Presidential appointees or designees to items that the person originated, reviewed, signed, or received while serving as a Presidential or Vice Presidential appointee or designee. .."
debatepolitics.com
