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One of These Is Different from All the Others

The U.S. national security classification system was created by Executive Order 13526, which replaced earlier XOs. Vivek Ramaswamy's argument that Donald Trump is innocent (see above) hinges on this little-known detail.

However, Reuters is reporting that one of the documents Donald Trump has been charged with taking and hiding is different from all the others. It is a document about nuclear weapons. It is so secret that there is an actual statute, not just an XO, that protects it. The statute says that in order to declassify it, the president needs the consent of the Dept. of Defense and the Dept. of Energy. (As readers may recall, even though Rick Perry did not when he accepted the job of Secretary of Energy, the DoE's job is not selling American oil to foreign countries. It is about guarding nuclear weapons.)

The upshot of this law is that no president has the authority to declassify that particular document. Not by XO, not in writing, and certainly not by thinking "It's declassified!" The law prescribes a very specific procedure a president must follow to declassify it. Needless to say, Trump did not follow this procedure. So even if the other 30 charges of holding a document in an unauthorized location are thrown out because the judge rules that telepathic declassification is allowed, there is a specific statutory procedure for declassifying No. 19 that Trump almost certainly did not know about or follow.

Additionally, as we note above, the classification status of the documents is actually irrelevant because the Espionage Act does not refer to classification, which was invented after the Act was passed. But if the judge goes rogue, the appeals court is likely to focus on No. 19, which was classified by law, not by XO. Will it matter? It shouldn't, but if Judge Aileen Cannon is in the bag for Trump, this one could matter more than the others on appeal. (V)

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