Top secret: An overview of the state secret doctrine and relative legislation in the US

TOP SECRET
An overview of the state secret doctrine and relative legislation in the US

Article by Iacopo Brini

In the first days of August 2022, the Federal Bureau of Investigations executed a search warrant on the seafront luxury property of former US President Donald J. Trump. This action, which was the culmination of an investigation more than three months in the making, proved to be highly controversial and raised many questions both political and legal in nature.

Setting aside the debate that has arisen on whether this probe by the Department of Justice and the FBI was politically motivated, we shall remain focused on the legal implications and, after a brief overview of the Mar-a-Lago raid events, we shall expand our analysis to cover the US legal doctrines pertaining to State secrets.

1. What happened in Mar-a-Lago?

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At the end of August, US Attorney General Merrick Garland unsealed the warrant served at the Trump estate, revealing that it was only issued after the government first asked former president Trump to hand back a cache of documents he had taken to his seaside resort; when he did not answer, the Government issued a subpoena to try and force him to hand over the classified documents. Trump’s obstinate resistance, and his only partial compliance with the subpoena resulted in the search warrant.

The FBI agents found four dozen document folders marked as “Classified”, forty-three of those in Trump’s office and the remaining ones in a storage room. Some of those bore the “Secret” and “Top Secret” designation, which meant that they could only be stored in special governmental facilities under any and all circumstances. Some even had the “Sensitive Compartmented Information” designation, which is only applied to certain intelligence sources or methods, including information pertaining to sensitive collection systems, analytical processing and targeting. A person can only have access to SCI with both a top-secret security clearance and a need-to-know designation.

Jay Bratt, the FBI Counterintelligence chief, gave credit to the idea that likely some of the documents taken to Mar-a-Lago were related to national defence and thus, to nuclear weapons (as reported on the Washington Post).

Trump is being accused of having broken some of the main laws related to official documents and State secrets, those being the 18 U.S. Code 2071, which prohibits the concealment, removal, or mutilation of information in general, the 18 U.S. Code 793 which prohibits gathering, transmitting or losing defence information and the 18 U.S. Code 1519 which outlaws the destruction, alteration, or falsification of records in federal investigations.

Trump, among other things, claimed to have issued a presidential standing order to declassify all documents he might have taken out of the White House. Being an executive directive, it was meant to remain in effect unless or until changed or repealed. This situation, however, seems to run contrary to Trump’s previous allegation that FBI planted the information he apparently declassified. That being said, however, none of the three statutes requires the sensitive information to be “classified” in order to depict a crime.

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2. Legal issues

Let us then take a look to the actual crimes that are being investigated and the relevant legislation.

The first potential allegation is the destruction, alteration, or falsification of records in federal investigations, disciplined by 18 U.S.C. 1519, which states that whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States, shall be fined under this title or imprisoned not more than 20 years, or both.

In plainer words, to convict a defendant of obstruction of justice under section 1519, the government is bound to prove that the defendant both knowingly altered a record, document, or tangible object, and acted with the intent to impede, obstruct, or influence an investigation within the jurisdiction of the U.S. On the other hand, it’s not required the proof that the defendant's sole or even primary intention was to obstruct justice, as long as it proves beyond any reasonable doubt that one of the defendant's intentions was to obstruct justice.

The second crime we could detect is the wilful concealment, destruction, or removal of federal documents, prohibited under 18 U.S.C. 2071. To establish a violation of this provision, the government must prove that an individual concealed, destroyed, or removed a record with the specific criminal intent to do so, as well as the fact that the record was filed or deposited in a public office of the United States, and that the individual acted wilfully and unlawfully.

This specific crime-intent requires a person to have had an intention to alter the records in violation of the law. As it’s often the case, a justification for potential defendants is they didn’t in fact know they weren’t allowed to remove the documents or destroy them. Going back to President Trump’s case, however, he was repeatedly told he was violating the law with the way he handled records, as confirmed by The Washington Post’s report that two of Trump's former chiefs of staff, Reince Priebus and John Kelly, and former White House Counsel Don McGahn, warned him about the Presidential Records Act.

3. The Presidential Records Act (PRA) and the Espionage Act

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The Presidential Records Act generally disciplines the president and former president's responsibilities in regard to records and information of their administration.

Section 2203 of the act gives the president the responsibility of identifying preserving records during his charge and requires the president to take all such steps to preserve presidential records.

However, a president may also destroy records that he decides not holding administrative, historical, informational, or evidentiary value anymore. Before destroying records, the president must ask archivists for their opinion, although their response is not binding. If the archivist does not sign off on the president's determination, congressional subcommittees are notified; the powers vested in Congress to deal with such a notification remain nonetheless unclear and disputed among legal scholars.

The statute itself is characterized by vague language and the lack of a real enforcement mechanism: although a president is not supposed to dispose of records and documents in an improper way, the PRA is at most a statement of best practice more akin to an honour system than a legal set of rules.

Although courts can review the classification of existing records, they can’t stop the president from acting or otherwise tell him to create and preserve specific records, at most they can enforce some modest limits on what White House officials can do with records that have already been created.

For example, a district court invalidated an agreement between President H.W. Bush and the National Archives that would've conferred complete control of presidential records on the president after he left office.

Although citizens don't have a right to enforce the PRA, the Department of Justice has a mandate to enforce it in some particular circumstances, such as with President Trump’s own handling of documents during his tenure, for which he is being separately investigated.

Trump’s trouble in this investigation, however, become serious once the contents of those files and folders come into play,particularly because of the role of a significant piece of legislation in the US legal body and legal history: the 18 U.S.C. 793. This Code concerns the gathering, transmitting, or losing of defence information and it’s best known as the Espionage Act, even though it doesn’t deal with espionage but has far more to do with state secrets.

First issued by Congress in 1917 on the onset of the US’ intervention during the First World War, the Espionage act covers the unlawful retention of defence-related information which could harm the United States or an ally and, significantly, it penalises people even if the records in hand are not “classified”. The Act merely requires the document to be called “national defence information”, which is vaguely and tautologically defined by the doctrine as information related to the national defence.

Those accused of violating the Espionage Act have argued that the statute is unconstitutionally vague because it doesn’t provide sufficiently clear standards to determine whether information in their possession qualifies as national defence information. However, in 1941, through the landmark case Gorin v. United States, the Supreme Court concluded that the constitutional review was passed since the statute’s state-of-mind (or mens rea) requirements had a delimiting effect that conferred enough definitiveness to the potentially problematic language.

When the information is indeed classified, a different law, called 18 U.S.C. 1924, is automatically triggered; this provision sanctions the mishandling of classified information, an offence that used to be a misdemeanour until President Trump himself signed a law in 2018 upgrading it to a felony according to the strict liability scheme.

Section 793 D of the Espionage Act, in particular, makes it a crime to retain and fail to deliver the national defence information, on demand to the officers entitled to receive it.

Section 793 F, besides, makes it a crime for officials in lawful possession of such materials to disclose them to third parties who are unauthorised to receive them.

The Espionage Act is not limited in scope: it draws no distinction between the leaker, the recipient of the leak, or the 100th person who redistributes or even retains the national defence information.

4. Classification procedures

To help staffers and government workers ascertain whether the information they’re handling is or is not sensitive to national security, classified documents in the U.S. carry markings both in the header and the footer of each page, indicating the level of classification of the record as a whole. Furthermore, classified records have cover sheets that specifically indicate when the record was classified, by whom, and under what authority, as well as when the classification expires.

Under US Security Classification rules, classification marking on a document has to be treated as valid and binding unless and until a subsequent marking replaces it. Government staffers specifically identified by statute must cross out the classification markings in the headers and footers and stamp 'declassified' on the record noting when it is declassified, by whom, and under what authority. If this is not done in accordance with the letter of the law, the documents remain classified and have to be treated as classified for handling and storage purposes.

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5. Nuclear Weapons and Intelligence

The reports from the Mar-A-Lago raid alleged that the documents smuggled out of the White House could be related to nuclear weapons, and this, if true, constitutes an entire new variable in the equation.

Because classified information in the U.S. is created exclusively by executive order, its control remains in the exclusive domain of the President and his executive branch. Nuclear weapons information, however, is one of the few controlled by statute, in this case the Atomic Energy Act, which entails that this information cannot be released without a well-defined set of steps that remain outside of the exclusive control of the president.

An eventual declassification of this information would be effective for the purposes of the executive order, but it would still remain bound to the Atomic Energy Act, which carries its own particular criminal penalties.

The Act contains the discipline related to the design, the manufacturer, and the utilisation of atomic weapons, which encompass the category of restricted data.

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Conclusions

Having regard to this context, according to a both factual and legislative perspective, the high number of Acts, norms and disciplines which strictly define the circulation of classified and secret documents seem not to give space to defences and justifications for what has happened in Mar-a-Lago.

If we take a closer look to the U.S. legal system, however, we could enhance a particular type of defence, the First Amendment one. In fact, as it happens in our country with our own institutions, also in the U.S. the Supreme Court recognizes that, in some cases, the public's interest in receiving information can outweigh the government's interest in keeping it secret.

If the U.S. Government usually has a tendency to overclassify its documentation, in this situation, given the relevant nature of the defence information and especially its relation to nuclear topics, security interests are probably going to outweigh any and all First Amendment concerns.

Because of the sensitivity of the topic and the matters in hand, we probably just need to wait for the answers that will come, soon or later, from overseas.