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Trump lacked power to declassify secret nuclear arms document, experts say

Published Jun 18, 2023 06:09AM ET Updated Jun 19, 2023 04:10AM ET
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2/2 © Reuters. FILE PHOTO: Former U.S. President Donald Trump delivers remarks following his arraignment on classified document charges, at Trump National Golf Club, in Bedminster, New Jersey, U.S., June 13, 2023. REUTERS/Amr Alfiky/File Photo 2/2

By Jonathan Landay

WASHINGTON (Reuters) - Even when he was president, Donald Trump lacked the legal authority to declassify a U.S. nuclear weapons-related document that he is charged with illegally possessing, security experts said, contrary to the former U.S. president’s claim.

The secret document, listed as No. 19 in the indictment charging Trump with endangering national security, can under the Atomic Energy Act only be declassified through a process that by the statute involves the Department of Energy and the Department of Defense.

For that reason, the experts said, the nuclear document is unique among the 31 in the indictment because the declassification of the others is governed by executive order. 

“The claim that he (Trump) could have declassified it is not relevant in the case of the nuclear weapons information because it was not classified by executive order but by law,” said Steven Aftergood, a government secrecy expert with the Federation of American Scientists.

The special status of nuclear-related information further erodes what many legal experts say is a weak defense centered around declassification. Without providing evidence, Trump has claimed he declassified the documents before removing them from the White House.

Prosecutors likely will argue that declassification is irrelevant because Trump was charged under the Espionage Act, which predates classification and criminalizes the unauthorized retention of "national defense information," a broad term covering any secrets that could be helpful to the nation's enemies.

Document No. 19 is marked "FRD," or Formerly Restricted Data, a classification given to secret information involving the military use of nuclear weapons. The indictment described it as undated and “concerning nuclear weaponry of the United States.”

RULES FOR NUCLEAR DATA

Trump, who pleaded not guilty on Tuesday, has said he declassified while still in office the more than 100 secret documents he took to his Florida resort home, Mar-a-Lago, a contention echoed by Republican lawmakers and other supporters.

But Aftergood and other experts said that the Atomic Energy Act (AEA) of 1954 - under which the Department of Energy oversees the U.S. nuclear arsenal - defines a process for declassifying nuclear weapons data, some of the U.S. government’s most closely guarded secrets.

“The statute is very clear. There’s nothing that says the president can make that decision,” said a former U.S. national security official familiar with the classification system, who asked to remain anonymous.  

The most sensitive nuclear weapons information is classified as "RD," for Restricted Data, and covers warhead designs and uranium and plutonium production, according to a DOE guide entitled “Understanding Classification.”

The Department of Energy downgrades from RD to FRD nuclear weapons data it needs to share with the Pentagon, but the materials remain classified, experts said.

Materials classified as FRD include data on the U.S. arsenal size, the storage and safety of warheads, their locations and their yields or power, according to the guide.

FRD information only can be declassified through a process governed by the AEA in which the secretaries of energy and defense determine that the designation “may be removed,” according to a Justice Department FAQ sheet.

Not everyone agrees that the president lacks the power to declassify nuclear data. 

David Jonas, who served for 10 years as general counsel for the U.S. National Nuclear Security Administration, the Department of Energy division that oversees the nuclear arsenal,

said Trump had the constitutional authority to declassify all classified documents under the "unitary executive theory," which holds that Congress cannot limit the president’s control over the executive branch.

“The president is the executive branch and so he can declassify anything that is nuclear information,” he said.

Other experts dispute this view.

Elizabeth Goitein, a national security law expert at the Brennan Center for Justice, said the U.S. Constitution gives Congress the authority to limit presidential power related to most national security issues and “there is no question it can legislate in this area.”

While the president can request declassification of FRD materials, “it’s got to go through both DOE (Department of Energy) and DOD (Department of Defense). And it takes forever,” said Thomas Blanton, director of the National Security Archive.

FRD materials must be stored in a properly secured space, said Aftergood. "“Sticking it in your bathroom would not qualify,” he said, referring to the indictment’s allegation that Trump stored classified documents in a Mar-a-Lago bathroom.

(This story has been corrected to fix the name of the organization to "Federation of American Scientists," not "Federation of Atomic Scientists," in paragraph 4)

Trump lacked power to declassify secret nuclear arms document, experts say
 

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Comments (25)
John Laurens
John Laurens Jun 21, 2023 6:49AM ET
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dems stuffing their greedy faces with nothing burgers for so many years. just pathetic.
Adrian White
Adrian White Jun 21, 2023 6:49AM ET
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How is such a blatant disregard for national security a 'nothing burger'?
John Laurens
John Laurens Jun 21, 2023 6:49AM ET
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Adrian White  Only one person can declassify ANY document simply by making that decision. Guess who that is.
Charles Manson
Charles Manson Jun 19, 2023 6:51PM ET
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Trumps Election Rally in "Open Carry" Arizona next month should be great. The ones in Montana, Idaho, Utah, South Dakota, North Dakota, Texas .... To many to mention should be nice too. For you Beta MAGAphobes, that means lots of firearms on display.
rob finch
rob finch Jun 19, 2023 6:51PM ET
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but won't that frighten liberals?
Teena Marie
Teena Marie Jun 19, 2023 6:51PM ET
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Guns are banned at the rallies.
Tre Hsi
Tre Hsi Jun 19, 2023 6:51PM ET
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"....lots of firearms on display."  -- you mean all those over compensating MAGA guys with small hands desperately trying to prove their manhood?
Charles Manson
Charles Manson Jun 19, 2023 6:45PM ET
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He's just a Defense Secretary. Takes his Orders from the President. What's your argument here? Where's my Mugshot of Big Don?
Brad Albright
Brad Albright Jun 19, 2023 6:45PM ET
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I'll explain it for you real slow: Trump promises to hire "Only the best people." He appointed Mark Esper as Secretary of Defense, a guy, in Trump's judgement, qualified to make sound assessments about the security of the United States. After working with Trump, Esper's assessment is that Trump is not trustworthy in matters of national security.
Tre Hsi
Tre Hsi Jun 19, 2023 6:45PM ET
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Brad Albright  don't forget the current FBI director was appointed by The Donald as well
Brad Albright
Brad Albright Jun 19, 2023 3:55PM ET
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Trumps own former Defense Secretary says Trump cannot be trusted with the nation's secrets.
Mike J
Mike J Jun 19, 2023 3:17PM ET
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Trump is a criminal! A liar, a thief, a insurrectionist, a threat to Americas security! What do you think he was holding top secret documents for? Was he going to give them to Russia or China or Koreans, for money? Or for political help?
Charles Manson
Charles Manson Jun 19, 2023 3:02PM ET
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BTW ... The Judge will throw out this case because the Jack Procecutor and his Dweeb Team won't be able to get clearances to present these Top Secret Docs in Court. A "Motion to Dismiss" on Day one. Next Indictment please.
Brad Albright
Brad Albright Jun 19, 2023 3:02PM ET
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Absolutely! That's exactly why nobody ever gets prosecuted for taking secret information, because there is no way to present it in court. Next stupid comment, please.
Charles Manson
Charles Manson Jun 19, 2023 3:02PM ET
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Soooooo ..... Why the indictment?
Brad Albright
Brad Albright Jun 19, 2023 3:02PM ET
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God, you're dumb.
Brad Albright
Brad Albright Jun 19, 2023 3:02PM ET
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God, you're dunnb.
Charles Manson
Charles Manson Jun 19, 2023 2:52PM ET
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Odd. "Donald Trump lacked the legal authority to declassify a U.S. nuclear weapons-related document" yet he is the only person who has the Nuclear Codes to launch these babies. No one see the disconnect here. Too many MAGAphobe points of view on this site.
Brad Albright
Brad Albright Jun 19, 2023 2:52PM ET
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I see a disconnect: Between reality and your brain.
Charles Manson
Charles Manson Jun 19, 2023 2:52PM ET
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Remember Brad, when you lose focus on the issue and do a personal attack on the commentor . You lost the argument. Anything else?
Tre Hsi
Tre Hsi Jun 19, 2023 2:52PM ET
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"Donald Trump lacked the legal authority to declassify a U.S. nuclear weapons-related document" yet he is the only person who has the Nuclear Codes to launch these babies  -- I know you and your Q friends still think he is the current president, but here on planet earth, no, after Jan 21 2021 your orange messiah doesn't have the codes to launch anything, other than his errant golf shots
Brad Albright
Brad Albright Jun 19, 2023 2:52PM ET
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Charles Manson That' wasn't a personal attack, that was an observation that your thoughts do not match factual reality. Better?
Tre Hsi
Tre Hsi Jun 19, 2023 10:36AM ET
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"While the president can request declassification of FRD materials, “it’s got to go through both DOE (Department of Energy) and DOD (Department of Defense)..."  - what do you mean, the president can't just declassify documents in his head?  what kind of commie country are we turning into???
rob finch
rob finch Jun 19, 2023 10:34AM ET
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Congratulations on your successful witch hunt. You finally found something. And I'm still voting for him even if he had a paper about nukes.
Brad Albright
Brad Albright Jun 19, 2023 10:34AM ET
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You, sir, are a true patriot!
Ken Roth
Ken Roth Jun 19, 2023 10:22AM ET
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He stole it, kept it to show what a big man he once was for toilet reading and then he thought maybe I can sell it….what a moron
 
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