On Thursday night PDJT issued a memo which gave AG Barr specific powers and marching orders relating to declassifying matters relevant to the Russia investigation and its origins. What exactly is the authority that PDJT has delegated to AG Barr?
To understand this one first has to understand what the President’s authority is on classification and declassification. The President has the power to classify and declassify anything. This makes sense since he is the commander-in-chief. Independent experts as well as experts on both sides of the aisle agree concerning this legal power of the president. Whether such actions are wise or not is another story.
Normal classification and declassification duties are usually performed by people lower in the food chain so to speak. This is because they have been delegated to do so, usually by an appointee chosen by the President. These kinds of activities take place in many different departments within the federal government.
The Supreme Court confirmed this authority of the President in the majority ruling in the 1988 case Department of Navy vs. Egan. The majority noted that according to Article II of the Constitution,
“The President, after all, is the ‘Commander in Chief of the Army and Navy of the United States’. His authority to classify and control access to information bearing on national security … flows primarily from this constitutional investment of power in the President, and exists quite apart from any explicit congressional grant.”
In other words the right to classify and declassify info is not a power granted by Congress. Rather it is an inherent power of the Executive Branch of the government.
Executive orders provide the rules used to govern classification and declassification. Keep in mind that these executive orders can be changed by the President at any time. However, at this point in his presidency, PDJT has not made any changes to these orders. The current controlling executive order was issued by President Obama in 2009.
What is listed above outlines the President’s authority.
Under normal circumstances one department head (in this case DOJ) does not have the right to compel another department to produce classified information. They might discuss the reasons for access and reach an agreement about what data to make available. In relatively rare cases, they may bump the decision up to the ultimate authority, the President. Even in these cases the department holding the classified data can make their case for keeping the data hidden. However, the President is the ultimate arbiter on whether to declassify or not, on whether the DOJ can see what the DOD has classified, etc.
So, just what authority does AG Barr now have that he did not have before? Is it all encompassing or are there limits?
There are clear limits. First, the authority to compel cooperation is limited to the agencies listed.
The matters covered are defined in the first section. They include any and all intelligence activities relating to the 2016 campaigns and “certain related matters.” What “certain related matters” means exactly is not known at this time.
The “shall promptly provide“ means the other departments cannot withhold information or data from the AG. They must provide what he asks for. This is a bit out of the normal protocols. As noted above, the normal process does not provide the AG with this power. Why is PDJT doing this?
While PDJT is the ultimate declassification authority, if corrupt activity is uncovered, potentially (most probably) he is also the target/victim. This creates an inherent conflict of interest. To avoid this conflict, PDJT has designated AG Barr as the decision-maker regarding declassifying evidence within the investigation.
Note that PDJT is granting the AG Barr full unilateral decision-making as to each product being considered for declassification. This is not subject to review by the office of the president.
Barr will still follow normal protocols of allowing, as he sees fit, arguments to keep info classified. However, with regard to the ongoing investigations (the last count was well into the double digit range), AG Barr is the ultimate authority regarding declassification.
Additional notes: Barr’s authority cannot be delegated. He and he alone carries this authority. Also this authority does not succeed his exit from the office of Attorney General unless specifically authorized by the President. In other words, the authority is invested in Barr as AG not the office of Attorney General.
Also keep in mind that the upcoming release of Inspector General Horowitz’s report (probably June) is covered by this memo. It is strictly up to AG Barr to decide what classified information within that report can be declassified. Only national security interests would remain classified. This should mean that information that is embarrassing or otherwise negative to the department will not be redacted. It was widely suspected that “swamp creatures” covered up info in the previous IG report for this reason.
One last note: PDJT’s actions here are very consistent with his approach to being President. Specifically he has brought transparency to government. His willingness to allow AG Barr complete autonomy here is just another example of this.
During the Special Counsel’s investigation PDJT gave the SC unprecedented access to members of the White House. He encouraged them to be open with the SC at all times. He had the right to exercise Executive Privilege, but never exercised this right during the SC investigation. There was complete transparency. For Speaker Pelosi to claim a cover-up is well beyond ridiculous. It is just another example of the Democrats projecting their own crimes on others.
President Obama talked a good game in this area. However, in practice it turned out his administration was the least transparent one in modern times (and perhaps, when all the info is available, the most corrupt).
Keep in mind that this will not be a quick activity. Only AG Barr can make the decision on declassification. There will be many documents for him to review. This may mean months perhaps even years of cleaning up corruption. Hopefully enough shock waves will emit from this activity to wake up the American people to the deceptions that have been masquerading as truth.
Time to get some popcorn.
