Presidential Privilege and Classification

The two sides also clashed substantially over the duties of the special master. Mr. Trump’s lawyers argued that the arbiter should look at all the documents seized in the search and filter out anything potentially subject to attorney-client or executive privilege. By contrast, the government argued that the master should look only at unclassified documents and should not adjudicate whether anything was subject to executive privilege. — Reported in “The New York Times” by Charlie Savage, Alan Feuer, Glenn Thrush and Maggie Haberman Published Sept. 9, 2022 Updated Sept. 10, 2022, 7:36 a.m. ET

Could documents subject to a president’s attorney-client privilege be properly classified? I don’t think so. It is unlikely that anyone would need to discuss state secrets with a lawyer, even if the lawyer had proper clearance. But not all classified documents are properly classified–some might be classified mistakenly or to save government agencies or officials from embarrassment. The former president did use classification to hide his phone conversation with Ukraine’s president, reportedly. Evidently, a president could order documents classified to hide his interaction with a lawyer.

Could documents subject to executive privilege be classified? They could be. A president might order privileged documents classified to protect them from exposure. The Defense Department might classify documents related to discussions with others in the government including the president. That said, it isn’t clear what “residual executive privileges” a former president retains. DOJ reportedly believes there are none.

Are documents marked classified still classified? When officially declassified, copies should be so marked; as long as documents are marked “classified,” they must be treated as if they are classified. A looser policy would lead to chaos.

What became of the notes on the Helsinki meeting? Does President Biden know the secret? Will the public ever know?

About whungerford

* Contributor at NewNY23rd.com where we discuss the politics, economics, and events of the New New York 23rd Congressional District (Allegany, Cattaraugus, Chautauqua, Chemung, (Eastern) Ontario, Schuyler, Seneca, Steuben,Tioga, Tompkins, and Yates Counties) Please visit and comment on whatever strikes your fancy.
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