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Security clearance is different for presidents, affecting Trump case

Prosecutors examining Donald Trump for possible mishandling of classified information will have to do so without a key legal and factual element that has long been a staple of these cases, intelligence experts say. Indeed, unlike the vast majority of federal workers who access secret information, presidents are not required to sign documents on classified documents as part of entering or leaving government.

Typically, when someone has access to restricted information, it is “read” – a process that includes signing documents initially, in which they acknowledge the legal requirements not to share information about sensitive programs with unauthorized persons or keeping classified documents in unauthorized places. When they leave these jobs, they are “read”, again acknowledging in writing their legal responsibilities and declaring that they have no classified documents in their possession.

David Priess, a former CIA officer who is editor of Lawfare, a national security website and podcast producer, said presidents are not read on classified programs when they leave office. This, he said, “is due to the fact that presidents are not officially elected”.

Says Priess: “There is a myth out there that presidents have a formal security clearance. They don’t.

The “commander in chief has the ability to classify or declassify documents,” Priess said, due to being elected president by the American people. “A former president may have access to limited classified documents after leaving office to assist in the writing of memoirs or at the discretion of the current president, but a formal security clearance is not involved.”

Email shows White House lawyer agreed in 2021 that documents Trump had should go to archives

In past cases of classified mismanagement involving non-presidents, the formal paperwork being read in and out of classified cases has been an important part of the investigation. When former general and CIA director David H. Petraeus pleaded guilty in 2015 to a misdemeanor charge of mishandling classified information, for example, court documents indicated that he had repeatedly signed documents stating that he would not share or retain inappropriately classified material.

Petraeus has signed at least 14 such nondisclosure agreements during his military and intelligence career, including a statement in 2006 that he “will return all documents that may have come into my possession or I am responsible because of such access”. , at the request of an authorized representative of the United States Government or upon termination of my employment or other relationship with the United States Government. »

This same statement indicates that Petraeus understood that failure to turn over these documents upon request could be a violation of the Espionage Act – the same section of the criminal code cited in the FBI search warrant for the house. of Trump at Mar-a-Lago earlier this month.

In 2012, as Petraeus left the CIA, he signed a document stating, “I give assurances that there are no classified documents in my possession, custody or control at this time.” This document later became part of the case against him.

But Trump, like his predecessors, apparently did not sign such documents, which could have legal significance for how prosecutors view his case.

The Trump investigation grew out of a dispute in which the National Archives repeatedly pressed the former president to provide documents considered government property under the Presidential Records Act. Eventually, Trump’s advisers turned over 15 boxes of material, including, according to the agency, more than 100 classified documents, some top secret.

The return of these boxes from Trump’s Mar-a-Lago club in January set off alarm bells within the government that the former president or his aides had mishandled and retained significant amounts of sensitive defense information. national. But Trump’s unique position as a former president means the criminal investigation can, of necessity, focus more on what Trump did from May, when he received a grand jury subpoena for any remaining material bearing classified marks, rather than its actions regarding items turned over in January.

If Trump doesn’t fully comply with the subpoena, experts say, he could face legal danger regardless of whether he was read classified programs upon leaving office.

“This is yet another reason why criminal investigations and prosecutions against a former president are complex,” said Brandon Van Grack, a private practice lawyer who previously worked on mismanagement cases when he was a prosecutor. federal. “What it highlights is that the criminal case is focused on what happened after May, not what happened before.”

A Justice Department spokesperson declined to comment on how the apparent lack of reading or reading for Trump might affect prosecutors’ legal analysis of the facts in the Trump case.

John F. Kelly, Trump’s former chief of staff who has said he dislikes classification rules and distrusts intelligence officials, said government officials should have given the 45th president some kind of debriefing. farewell on questions and classified documents when he left the White House.

“It would have been important to read it aloud because it would have been in some hopes that it would not violate all those rules on classified documents. The important message would have been: ‘Once you are no longer president, all the rules apply to you,” Kelly said.

A Trump spokesperson did not respond to a request for comment on whether the former president had received any exit briefings. on classified material. Trump has criticized the FBI for raiding his home, and his defenders have claimed he declassified the material he took with him before he left office – although no evidence has been made public that he followed the process to do so.

FBI’s Mar-a-Lago search followed months of resistance and Trump delays

On Monday, Trump’s lawyers filed court papers asking for the appointment of a special master to review material seized in the August search — a curious request given that such appointments are typically made to deal with matters of secrecy. professional, not classified information, and the request did not arrive until two weeks after the search, meaning that law enforcement officials have already been examining the seized material for some time.

A Florida federal judge who received the request has asked Trump’s legal team to clarify why they did it, giving attorneys until Friday to respond.

The mishandling of national security evidence isn’t the only crime being investigated in the Mar-a-Lago investigation, and Trump’s unique status as a former president can’t diminish his legal risk for the two other potential criminal charges listed on the search warrant: destruction of records and concealment or mutilation of government material.

Still, Ashley Deeks, a University of Virginia law professor who until recently served as deputy legal counsel to the National Security Council, said the laws and practices regarding classified information put the president in a somewhat unique position.

“Because the president himself is the ultimate classification authority, it makes sense that agencies wouldn’t officially read presidents in classified programs,” Deeks said. “With respect to former presidents, Congress itself has recognized in law that former presidents will always have access to at least some of their records, although Congress has also clarified that former presidents do not personally own of these records.”