I don’t think it’ll matter. Let’s do a dive into the specifics of the three offences named so far, and then I’ll ‘so what?’ Sorry guys, law nerding here, feel free to scroll and skip.
www.law.cornell.edu
18 USC 793- Multiple subsections, and they don’t specify in the warrant, but I suspect investigators are looking at d) and or e). In short, if someone:
- Has lawful or unlawful possession, access to, or control of;
- Information related to the national defense;
- That could be used to the injury of the US or advantage of a foreign nation, and;
- Attempts to or does communicate it to anyone not entitled to receive it, OR wilfully retains and fails to deliver it
Other subsections require intent to basically hand it over to an adversary, but d) or e) are met if someone has the stuff (lawfully = d unlawfully = e) and fails to hand it over or deliver it to the person entitled. The section
does not require the information to be classified. Even if declassified, the definition of “defense information” could easily be met.
www.law.cornell.edu
18 USC 1519- This is an obstruction of Justice offence. Elements:
- Knowingly;
- Alters, destroys, mutilates, conceals, covers up, falsifies or makes a false entry in any record, and;
- With intent to impede investigation or proper administration of a federal matter.
So if you were to falsely say you’ve handed everything over, or that you never had it, or try to alter it, and the intent is to obstruct justice, elements are met. Likewise, does not stipulate classification as a requirement.
www.law.cornell.edu
18 USC 2071- Concealment, removal, or mutilation:
- Wilfully and unlawfully;
- Conceals, mutilates, removes, obliterates, destroys any record, document, thing, etc, OR removes them with intent to do so.
- Either the materials are in that person’s custody, or they’re in the proper possession of any officer, clerk, public office etc of the US.
Again, no classification requirement.
All three of these offences criminalize, among other things, different misdeeds with respect to the mishandling or destruction/concealment/retention of documents, records etc. declassification does not equate to transferring
lawful possession of what are still US government records that are still subject to a legal safeguarding and archiving process. The first offence in particular concerns information pertinent to the national defence- and investigators had PC to believe they would find documents that specifically ticked that box.
Taking this a step further-
18 USC 1924- specifically
does criminalize unauthorized removal or retention of
classified material. This offence was not named on the warrant but could very much be ‘in play’ in the event that any of the documents recovered were not or could not be (more on that in a sec) declassified.
I don’t know the mechanisms of declassification as a presidential power. I suspect it’s not as simple and I stand as Michael Scott declaring bankruptcy, nor of course could it be retroactive once he lost legal authority. My educated guess is that it requires at least some documentary record which of course would itself become a presidential record. I won’t take bets on whether or not any proper declassification process was followed for the material recovered in the MAL search warrant.
Finally, my understanding is that presidential declassification is not absolute. I place no stock in the talk of ‘nuclear secrets’ until and unless proper government authorities confirm that. Indulging the hypothetical, however, declassification of such matters is a power not vested in the President, but rather held by the Department of Energy. If, hypothetically, materials related to nuclear technology classified as restricted data by DOE could not be unilaterally declassified by the president and he could not make it not an offence for him to retain them outside of proper storage and handling.
So… Classification a) may not matter, b) may not have been properly waived, c) could simply add additional offences rather than negating the ones believed to be supported already by probable cause, and d) might in very limited cases be outside the reach of even a current president to waive.
. I wonder why?
