When Donald Trump was indicted for absconding with classified documents, the most common defense we’ve heard from his supporters was that Trump had every right to those document by virtue of the president’s broad authority to declassify material.
But a number of national security experts told Reuters that there’s at least one document for which that defense doesn’t hold water. Namely, Document 19 of the 31 listed in the indictment—a secret document related to nuclear weapons. That document can only be declassified through a process governed by a 70-year-old statute—a process overseen by the Department of Energy and the Pentagon, not the president.
Document 19 was described as “FRD,” or “Formerly Restricted Data,” which is a designation for secret information about nuclear weapons. But that doesn’t mean that the document had been declassified.
The most sensitive nuclear weapons information is classified as "RD," for Restricted Data, and covers warhead designs and uranium and plutonium production, according to a DOE guide entitled “Understanding Classification.”
The Department of Energy downgrades from RD to FRD nuclear weapons data it needs to share with the Pentagon, but the materials remain classified, experts said.
Materials classified as FRD include data on the U.S. arsenal size, the storage and safety of warheads, their locations and their yields or power, according to the guide.
Documents classed as FRD cannot be declassified by the president alone. Rather, under the Atomic Energy Act of 1954, there is a process by which the secretaries of Energy and Defense to determine whether the FRD designation “may be removed,” according to a Justice Department FAQ. According to National Security Archive director Thomas Blanton, while a president can ask for an FRD designation to be removed, that process “takes forever.”
Blanton isn’t the only national security expert who believes that as a result of this law, there is no way Trump himself could declassify that document.
“The claim that he (Trump) could have declassified it is not relevant in the case of the nuclear weapons information because it was not classified by executive order but by law,” said Steven Aftergood, a government secrecy expert with the Federation of American Scientists.
The special status of nuclear-related information further erodes what many legal experts say is a weak defense centered around declassification. Without providing evidence, Trump has claimed he declassified the documents before removing them from the White House.
Aftergood added that there are rules that govern where and how FRD material is to be stored—and “sticking it in your bathroom would not qualify.”
One of the few national security experts who thinks Trump actually has a leg to stand on with this document is David Jonas, the general counsel of the National Nuclear Security Administration under George W. Bush. Jonas believes in the “unitary executive theory,” which holds that the president has sole authority over the executive branch—and hence can “declassify anything that is nuclear information.” Au contraire, says Elizabeth Goitein of the Brennan Center for Law and Justice. Goitein argues that Congress has the right to limit presidential power in national security, meaning that “there is no question it can legislate in this area.”
When MeidasTouch legal analyst Michael Popok learned about this document, he concluded that it could potentially be turned into a battering ram that would obliterate most of Trump’s defenses. Watch here.
Popok points out that under the Atomic Energy Act, nuclear documents are automatically classified—and can only be declassified by the process outlined in the act. He believes that even if Trump can convince a judge or a jury that he could unilaterally declassify documents, he has no authority to declassify Document 19—and that is enough to send Trump to prison for up to 20 years.
If I’m reading this right, this charge alone eliminates any even remotely defensible reason to pardon Trump. How do you justify pardoning a president who played fast and loose with nuclear documents?