By Jonathan Landay
WASHINGTON (Reuters) – Even when he was president, Donald Trump did not have the legal authority to declassify a U.S. document related to nuclear weapons he is accused of illegally possessing, security experts said, unlike the assertion of the former American president.
The secret document, listed as number 19 in the indictment accusing Trump of endangering national security, can only be declassified under the Atomic Energy Act through a process that, by law, involves the Department of Energy and the Department of Defense.
For this reason, the experts said, the nuclear document is unique among the 31 in the indictment because the declassification of the others is governed by decree.
“The claim that he (Trump) could have declassified it is irrelevant in the case of nuclear weapons information because it was not classified by executive order but by law,” said expert Steven Aftergood. in government secrecy with the Federation of American Scientists. .
The special status of nuclear-related information further erodes what many legal experts see as a weak defense centered on declassification. Without providing evidence, Trump claimed to have declassified the documents before removing them from the White House.
Prosecutors will likely argue that the declassification is irrelevant because Trump was charged under the Espionage Act, which predates the classification and criminalizes the unauthorized retention of “national defense information,” a general term covering all secrets that could be useful to the nation’s enemies.
Document No. 19 is labeled “FRD,” or Formerly Restricted Data, a classification given to secret information involving the military use of nuclear weapons. The indictment describes it as undated and “relating to the nuclear armament of the United States.”
RULES FOR NUCLEAR DATA
Trump, who pleaded not guilty on Tuesday, said he declassified while still in office more than 100 secret documents he brought to his Florida vacation home, Mar-a-Lago, a claim taken up by Republican lawmakers and other supporters.
But Aftergood and other experts said the Atomic Energy Act (AEA) of 1954 – under which the Department of Energy oversees the US nuclear arsenal – sets out a process for declassifying weapons data. nuclear weapons, some of the US government’s best-kept secrets.
“The statute is very clear. Nothing says the president can make that decision,” said a former US national security official familiar with the classification system, who asked to remain anonymous.
The most sensitive information about nuclear weapons is classified “RD,” for Restricted Data, and covers warhead designs and uranium and plutonium production, according to a DOE guide called “Understanding Classification.”
The Department of Energy is downgrading nuclear weapons data it must share with the Pentagon from RD to FRD, but the materials remain classified, experts said.
Materials classified as FRD include data on the size of the US arsenal, storage and security of warheads, their locations and their yields or power, according to the guide.
FRD information can only 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 Department of Defense FAQ sheet. Justice.
Not everyone agrees that the president does not have the power to declassify nuclear data.
David Jonas, who for 10 years served as general counsel for the US National Nuclear Security Administration, the division of the Department of Energy that oversees the nuclear arsenal,
said Trump had the constitutional authority to declassify all classified documents under the “unitary executive theory,” which says Congress cannot limit the president’s control over the executive.
“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 US Constitution gives Congress the power to limit presidential power related to most national security matters and “there is no doubt that it can legislate in this area”.
Although the President can request the declassification of FRD documents, “it must go through the DOE (Department of Energy) and the DOD (Department of Defense). And it takes forever,” said Thomas Blanton, director of the National Security Archives.
FRD materials should be stored in a properly secured space, Aftergood said. “‘Stick it in your bathroom wouldn’t be admissible,'” he said, referring to the indictment’s allegation that Trump stored classified documents in a bathroom in Mar. -a-Lago.
(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)
(Reporting by Jonathan Landay; Editing by Don Durfee, Amy Stevens and Cynthia Osterman)