Remember back when the presidential team of George W. Bush and Dick Cheney exploited the war on terror to push their vision of an imperial presidency, the “unitary executive” theory? The president, they argued, has ultimate authority over the whole of the executive branch and is restricted only by the U.S. Constitution as the judiciary interprets it. Bush, Cheney, and their band of ghouls used it to justify warrantless surveillance of Americans and the torture of detainees. They used it to set up an extralegal detention system at Guantanamo Bay, where detainees still exist in legal limbo. Bush & Co. at least tried to put an official gloss on their actions. They had a whole legal team inside of the White House writing memos to justify war crimes, dotting every “i” and crossing every “t.”
Turns out they needn’t have bothered with all that, because the new theory of the unitary executive says that if a (Republican) president thinks about doing a thing, wants to do that thing, it’s as good as done. At least when it comes to declassifying critical national security documents about nuclear stuff and putting them in the hotel safe in your bedroom to show to off to all of the totally not foreign intelligence agents who are guests at your resort. No, really.
“As the facts stand now, his defense would be, ‘I declassified those documents. I am not therefore in possession of classified documents now,’” said Charles Stimson, a senior fellow with the conservative Heritage Foundation and a former federal prosecutor. The Heritage Foundation, that stalwart Republican establishment think tank and policy center. Stimson says that Trump was “the ultimate declassification authority.” And he could do it all by himself. He didn’t even have to do it. He just had to think it.
“If any president decides to declassify a document and doesn’t tell anybody—but he has made the decision to declassify something—then the document is declassified,” Stimson said. He added that “there’s a rich debate about whether or not a document is declassified if a president has decided but not communicated it outside of his own head.” No. There is not a rich debate. This is bullshit.
But Stimson, and arguably the whole of the GOP, which is now Trump’s, maintain that nothing Trump stole from the White House and stuffed in his basement would fall under criminal statutes—even the law Trump signed in 2018 making the unauthorized removal and retention of classified documents by any official a felony offense punishable by five years in prison.
Of course that’s not how any of this works. Former commanding general of United States Army Europe and the Seventh Army and national security analyst Mark Hertling has a helpful thread on Twitter explaining the process. As a senior officer in the military, he did this stuff. He explains how the government “specifies - in excruciating detail - procedures for protecting levels of classified information.”
And it takes a lot more than thinking, “Oh, hey, I might want to use this document to get some money out of the Saudis some day, so I’m calling it declassified.”
Plenty of other experts interviewed by NBC News agree. “He can’t just wave a wand and say it’s declassified,” former Assistant Deputy Director of National Intelligence Richard Immerman said. “There has to be a formal process. That’s the only way the system can work,” in order to control access to and handling of sensitive national security documents. “I’ve seen thousands of declassified documents. They’re all marked ‘declassified’ with the date they were declassified,” Immerman said.
Process, schmrocess, says Trump. “We’ve told him there’s a process and not following it could be a problem but he didn’t care because he thinks this stuff is dumb,” a source who tried to explain this to Trump said. “His attitude is that he is the president. He is in charge of the country and therefore national security. So he decides.” Note that’s all in present tense.
Plenty of us dirty fucking hippy bloggers railed for years about how not holding Bush and Cheney accountable for the laws they broke was going to come back to bite us all the next time a Republican became president. Yeah, we told you so.
But back in 2009, no one imagined this. How much worse could it be in 2024? We can’t even imagine. Which is why holding Trump accountable now is absolutely essential.