U.S. Classified Information

Mar-a-Lago: National Security & Constitutional Conflicts

Image: “classified documents with and without cover sheets found by the Federal Bureau of Investigation during its search of Mar-a-Lago in August 2022.” (Public Domain)

Can a U.S. president declassify government documents by merely thinking it?

If you would indulge me, let’s forget about politics for a moment (with midterm elections next week, I know this is hard to do). Also, let’s not get into a complex discussion of the law, not just yet anyway.

The scenario is a simple one for me. If the U.S. president could, arguendo, declassify (or classify for that matter) government documents by merely thinking it, then how would people know? No, seriously. This is neither a political nor a legal question. Let me ask it this way: if your boss at work thought of something in his or her mind, how would you know? Shouldn’t there be a clear, formalized communication process?

Well, you may retort that the above questions are irrelevant because former President Trump did in fact tell Kash Patel and possibly one or two other White House aides about his broad declassification of many documents. Okay then, let’s get into a discussion of law here.

My guest is Professor Heidi Kitrosser of Northwestern University Pritzker School of Law. She is an expert on the constitutional law of federal government secrecy, and on the separation of powers and free speech law more broadly. She is also…