Trump Has the Power to Declassify Whatever He Wants — Including the Russian Intercepts

Late Tuesday evening the New York Times reported that current and former U.S. officials claim that members of Donald Trump’s presidential campaign as well as other Trump associates “had repeated contacts with senior Russian intelligence officials” before the 2016 election.

Donald Trump then spent the early morning Wednesday unhappily tweeting about this:

If in fact all of this is “non-sense,” Trump has the power as president to make that clear immediately — by declassifying all government intercepts of communications between Russian nationals and anyone in his orbit.

The huge edifice of classification by the U.S. government has no basis in laws passed by Congress (with one small and, in this case, irrelevant exception.) Instead, the executive branch classifies material based on presidential executive orders, with the president’s power in turn based on his constitutional role as commander in chief of the armed forces. The Supreme Court has stated that the presidential power “to classify and control access to information bearing on national security … flows primarily from the constitutional investment of power in the president.”

This means that Trump has the power to declassify anything he wants, right now. CNN has reported that he has already been briefed on the contacts between his associates and Russians.

So in theory Trump could ask the National Security Agency and all the other U.S. intelligence agencies to give him all the relevant intercepts and post everything about them on the White House website this afternoon.

In practice, any president, even one who honestly wanted to reveal as much as possible, would want to learn what intelligence capabilities would be revealed by such a disclosure, and then keep aspects of the intercepts secret to conceal the sources and methods that were most significant.

The White House press office did not respond when asked whether Trump plans to use his declassification authority.

Steven Aftergood, director of the Federation of American Scientists’ Project on Government Secrecy, points out that presidents have used their declassification power before in response to public outcry. In 2004 George W. Bush declassified the relevant section of the presidential daily brief headlined “Bin Laden Determined to Strike in U.S.” At the beginning of Barack Obama’s presidency he ordered the declassification of the memos the Justice Department produced advising the Bush White House on the legality of torture.

Beyond Trump himself, others have an incentive to see their names cleared by the release of any intercepts. Paul Manafort, Trump’s one-time campaign chairman, is named in Tuesday’s New York Times article as speaking with notable Russians but told the Times, “I have never knowingly spoken to Russian intelligence officers, and I have never been involved with anything to do with the Russian government.” The possible Russian contacts of Roger Stone, an infamous GOP operative who was briefly part of the Trump campaign; Carter Page, a businessman who was on the periphery of the campaign; and Trump’s now-fired National Security Advisor Michael Flynn are all under FBI scrutiny.

None of the four could immediately be reached with questions about whether they would support Trump using his declassification power to release any intercepts of their conversations that exist. Stone told The Guardian on Wednesday that “The president should tell his attorney general that either he finds proof of this, or he puts it to bed and announces none of it happened. … I would relish the opportunity to testify in public under oath on this issue.”