Classified or Declassified? What Does the Law Say

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Days after the FBI seized 11 sets of classified documents in a raid of former President Donald Trump’s Mar-a-Lago residence, Trump and his allies are claiming that he had a “standing order” to declassify documents removed from the Oval Office. What does the law say about the protection of classified information? A Congressional Research Service report, just issued on August 12, 2022, includes all the details.

Brief Overview of CRS Report

Prior to the New Deal, all decisions regarding classification of national security information were left to military regulation. However, in 1940, President Franklin Roosevelt issued an executive order [1]5 Fed. Reg. 1147 (1940), Tuesday, March 26, 1940, pages 1147 – 1184. This document can be fond in HeinOnline’s Federal Register Library allowing government officials to protect information. Later Presidents cited general statutory and constitutional authority in their executive orders regarding the matter.

The last amendment regarding standards for classifying and declassifying information was issued in Executive Order 13526 [2]3 C.F.R. i (1992). This document can be found in HeinOnline Code of Federal Regulations database. The officer who classifies the information will set a date for declassification based on expected duration. If this person does not set a date, the information is marked for declassification within 10 years, or 25 years, depending on the sensitivity of the information. The information may not be removed without permission from the controller agency’s premises.

A prison sentence of no more than five years and/or a fine is imposed for anyone who knowingly removes classified material without the authority to do so. What’s more, if a person transmits these documents to an agent of a foreign government, they can face penalties of years in prison, life in prison, and in cetain circumstances, a death sentence.

Once a document is declassified, it may be released. While some argue that the President does not need to go through a formal procedure for declassification, Executive Order 13526 [3]3 C.F.R. i (1992). This document can be found in HeinOnline Code of Federal Regulations database does not address this.

excerpt from CRS Report

The HeinOnline Blog will continue to follow these events closely and share relevant and reliable content from within our databases. Stay tuned for more information on this developing story.

HeinOnline Sources

HeinOnline Sources
1 5 Fed. Reg. 1147 (1940), Tuesday, March 26, 1940, pages 1147 – 1184. This document can be fond in HeinOnline’s Federal Register Library
2, 3 3 C.F.R. i (1992). This document can be found in HeinOnline Code of Federal Regulations database
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