New Haven Register (Sunday) (New Haven, CT)
Trump search warrant: What is classified information
WASHINGTON — When a federal magistrate judge unsealed on Friday the warrant used to search former president Donald Trump's home, he also made public an inventory list of all the items taken in the high-profile raid.
The unprecedented search was related to an investigation into the potential mishandling of classified documents, including material related to nuclear weapons, The Washington Post reported Thursday.
The inventory of 28 seized items provides a glimpse of what was still being kept at Mar-a-Lago, Trump's Florida residence and private beach club, more than a year after the National Archives and Records Agency began trying to retrieve presidential records improperly taken from the White House at the end of Trump's presidency. It offers few details.
Here's what you need to know about classified information to help decode some of the items included in the inventory list.
Q: What is classified information?
A: Classified information refers to documents and other records that the government considers sensitive. Access is generally restricted to people who have passed the proper background checks.
There are three broad levels of classified information.
Confidential is defined as information that could “damage” national security if it is publicized, is the lowest level, according to Steven Aftergood, a security specialist at the Federation of American Scientists. The largest number of government workers and contractors — thousands upon thousands — have access to this information. It could include basic State Department cables and information provided by a foreign government, Aftergood said.
“Even if it doesn't involve highly sensitive secrets, it would be marked as confidential,” he said. “And you do not want to release it, because it would complicate diplomatic relations with that foreign government.”
Secret is the next level of classification, referring to material that, if released, could cause “serious damage” to national security. The budget of a U.S. intelligence agency, for example, could be classified as “secret.”
The most sensitive information is classified as top secret, meaning it could cause “exceptionally grave danger” to national security. And within “top secret” exists a number of subclassifications often dealing with the most protected pieces of American information and intelligence. Top-secret information could include weapon design and war plans.
Sensitive Compartmented Information, a category that falls under the “top secret” classification, includes information derived from sources and intelligence. That may be an electronic intercept or information provided by a human informant in a foreign country.
“The concern there is that if it were disclosed, then not only would national security be at risk, but the individual source or method could be, too,” Aftergood said.
Q: What classified information did Trump reportedly have in his possession?
A: FBI agents recouped four sets of “top-secret” documents, three sets of “confidential” documents and three sets of “secret” documents from Mar-a-Lago, according to the list of items seized in the raid and unsealed by a judge on Friday. Another set of documents was labeled “Various classified TS/SCI documents,” a reference to “topsecret” and “Sensitive Compartmented Information.”
But the list didn't describe the documents beyond their classification levels. Since much of the information seized was classified, legal experts had warned beforehand that any inventory list would be vague to protect the contents of the documents.
Q: How is information classified?
A: In theory, the president decides which information is classified and which is not. But in practice, the president delegates the responsibility to Cabinet and agency heads, who then may give the responsibility to others who work for them.
Q: Who can access classified information?
A: Government workers and contractors must go through background checks to receive the necessary clearance to access classified information. The more sensitive the information, the more arduous the background check process a person would need to pass to get clearance. There is certain classified information that thousands of people can access. For other information, only a handful of people have the necessary clearance levels to access it. The president would have access to every document and all intelligence information.
Some workers have to sign nondisclosure agreements when they leave the government to ensure they do not discuss the secret information they had access to while on the job, said Javed Ali, a senior official at the National Security Council during the Trump administration who now teaches at the University of Michigan.
“You go through serious levels of background checks to get a clearance, and not everyone passes,” Ali said. “You want people who can be trusted with this sensitive information and do the right thing.”
Q: Can a president declassify information?
A: Yes, the president has the authority to declassify information. Typically, there is a process for doing that, according to Ali. It includes communicating with the Cabinet or agency head from which the information originated to ensure that declassifying it poses no risk to national security.
Trump's team has publicly said that he declassified all the documents found in Florida before leaving the White House. But it's unclear whether he went through a document-by-document declassification process, working with the relevant agency.
Q: Can a president legally remove declassified information from the White House?
A: No, according to security experts. There are other laws that protect the country's most sensitive secrets beyond how it is classified. For example, according to Aftergood, some of the intelligence and documents related to nuclear weapons can't be declassified by the president. Aftergood said such information is protected by a different law, the Atomic Energy Act.
Another law — called “gathering, transmitting or losing defense information” — states it is illegal to remove documents related to national security from their proper place if it could risk the security of the country, no matter the classification level of the information.
“The classification is just one piece of the picture,” Aftergood said. There are other protections in the law that can make disclosure or unauthorized retention problematic or even criminal.
Removing certain property and documents from the White House would also violate the Presidential Records Act, which requires presidents to preserve official records during their time in office. The act says that records from a presidency are public property and do not belong to the president or the White House team. Violating the records act would be a civil, not a criminal, offense.
Q: Speaking of violations, what laws did the warrant say may have been broken?
A: The warrant lists the codes of three U.S. laws that may have been violated. That does not mean all of them were broken, however, or that these are the only laws that could have been violated in connection with the FBI's investigation. The laws pertain to destruction or moving of government documents and carry criminal penalties.
Section 793 — “Gathering, transmitting or losing defense information” — is known as the Espionage Act. It's a broad law, and violating it does not necessarily mean that someone committed espionage. The law states it is illegal to remove documents or records related to national security from their proper place if it could risk the security of the country.
“It's almost a misnomer, because when people hear ‘espionage,' they think the classic definition of espionage spying,” Ali said. “But here it does not have anything to do with that, as far as we know. This may not be the cloak and dagger type of espionage.”
The second, Section 1519 — “Destruction, alteration, or falsification of records in Federal investigations and bankruptcy” — criminalizes the destruction or hiding of documents to obstruct an investigation. The warrant does not detail which investigation the removal of these documents could be obstructing. It carries a prison sentence of no more than 20 years.
And the third, Section 2071 — “Concealment, removal, or mutilation generally” — makes illegal the willful theft or destruction of any government document. Every offense of this act could carry a sentence of up to three years of prison. A person convicted of violating this section is barred from holding federal office, according to the law.