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If the president calls some other country and tells them something that's classified, and he doesn't know it's classified, I think it still becomes declassified in doing so. At least, that seems to be the argument. So in effect, by taking them home and keeping them past the end of his presidency, Trump declassified the materials without realizing he did so.
I mostly just find that argument amazing and I hope it wins for its own sake as an argument.
I don't think this is actually the case, in part because the rules of classification don't have to actually make sense. For example, a currently held legal position of the USG is that even if classified information is leaked in public (like, for instance, the Snowden materials or others like that), so that it is plastered on every journalistic outlet in the world, it is still "classified". I've heard stories of people seeing things marked classified a month or two after the exact thing was on the front page of NYT. The USG literally believes that, for example, if a person with a security clearance who works for the gov't, but doesn't have a need to know (or doesn't have the right level clearance or whatever), goes to a public website of a journalistic outlet and downloads classified documents, it is "spillage", and is probably theoretically intentionally mishandling classified information. Now, I think it is exceedingly unlikely that anyone is actually going to get prosecuted for downloading a copy of the Snowden documents (even folks with security clearances who signed documents essentially saying they wouldn't do this). But that's, like, the "official" view.
So, I think that if the president calls some other country and tells them something that's classified, it would be considered "spillage". Of course, the (sitting) president wouldn't be guilty of mishandling classified information, but the information would still be considered classified, and every member of the executive branch is supposed to treat that information with the same rules. (Of course, certain people's jobs is to analyze the effect of such spillage and what changes need to be made, but that's still within the regular rules concerning handling classified materials.)
Once we realize that we're sort of in this world where the rules are a bit made up and don't have to make so much sense, we're in a bit of a pickle and have some unfortunate choices to make. Let me actually proceed by merging these examples... suppose that Trump was being prosecuted for downloading a copy of the Snowden documents after leaving office. We have a broad statute. That broad statute sure as hell can be interpreted as making that action illegal. Yet, we sort of have good other reasons to not prosecute him (or anyone else who downloads them). Is the information still "classified"? Yeah, kinda. Is it treated sorta differently? Yeah, kinda. It's weird.
Back to the "president tells some other country something that's classified" case. Is that information still classified? I think so, and I think much more clearly so. Is it treated sorta differently? Yeah, kinda. Here, it might be a bit easier, because often, classification markings will indicate whether it's releasable to specific countries. So, for example, if the president up and told a delegation from the UK some classified information that wasn't previously classified as releasable to the UK, should the executive worker bees then proceed to mark any instance of that exact information as releasable to the UK moving forward? Hell, I don't know. It would make sense to me to do that, but the rules really are kind of made up at this point. It's not like we're going to get a statute that is on point with this level of granularity. The authority for this level of granularity likely flows from the president's power, and rules for exactly how you should handle this may be contained in executive branch documents outlining best practices... but honestly, probably isn't even there. I think this sort of situation just isn't formalized in any process document, and would probably just be a matter of norms and how various actually people in the gov't socialize the issue and feel like they should do. It probably gets to be extra tough, because if the president doesn't explicitly tell his people what his intent is, it's entirely possible that he actually desires there to be some ambiguity. Rather than having his worker bees suddenly all simultaneously start telling the UK, "Yes, this is actually true," perhaps he wants the UK to think that it might be true, but not know for sure. Then what? Sorta makes you almost lean in the other direction? But there sure as shootin' ain't gonna be an explicit statute that lays all this out in gory detail. Just the regular, broad, overarching one.
So now, the instant case. If a president takes stuff home, I doubt he's implicitly entirely declassifying it. Is he, like, implicitly marking it "releasable to former presidents"? "Releasable to former presidents, and the folks they want to share it with"? I mean, weird. I would tend toward probably not really. But the president has always been in a unique position WRT classified stuff. We're already, as shown above, in a world where the president can just sort of do shit with it, and then we're stuck trying to retcon in some set of sort of consistent rules for the worker bees to follow. And that leads us to the final insane part of the whole story. It's always been about retconning a set of rules for the worker bees. I don't know that we've ever had to even try coming up with a set of consistent rules for former presidents. At least, not to my knowledge; maybe as this drags on, we'll get some incredible historical research about how informally secret info was treated by a former president in 1840, or how Eisenhower did such-and-such after leaving office. But my sense is that most presidents tend to be happy to drift off into the distance and sort of disappear. They're fine with playing nice and giving stuff back. And the folks still in gov't aren't out to get them. So, it all just sort of works relatively smoothly, behind the scenes, informally, and no one needs to come up with their Super Consistent Set of Rules That are Still Totally Made Up for former presidents and classified info. In any event, basically all those factors are opposite here (Trump is not happy to drift off into the distance and disappear; he's not fine with playing nice and giving stuff back; the folks still in the gov't are out to get him).
That brings me to what I think is becoming my conclusion, more and more. The core conflict here is simply an incredibly vague area where there are no real rules plus a violent disagreement between Trump and the bureaucracy. This wouldn't be the first time. Hell, I came around to the idea that his entire first impeachment stood solely on the pillar that Trump disagreed with the bureaucracy about what is "in the interest of the United States", and the bureaucracy didn't take kindly to being disagreed with. Similarly, here, Trump is like, "Fuck you, there are no real rules as to what I can do with this stuff. I make the rules, even implicitly (and as such, they have implications for how things work after I leave office); your job is to figure out what you worker bees are going to do around the edges of what I do," and the bureaucracy violently disagrees.
But by those rules as you described it, wouldn't then the president taking stuff home be considered spillage in the same logic? Ie. from himself to himself? Then because - because - the president doesn't have clearance to own it anymore, he might actually paradoxically be in the clear to pass it on to journalists?
Like, he now has classified information, but he's not "forwarding classified information" because he's not in a position where he has special authority over classified information to begin with. It's just like a journalist passing a leak to another journalist. And when he had the authority to possess it, he spilled it, but that can't be a crime because, well, he had the authority to do that then. So in the journalist analogy, the president basically acts as both leaker and releaser at different points in time.
ROFL! That's a hilarious take. But I have no idea. The rules are made up, and the points don't matter.
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