Does Vice President Pence Believe He Has Declassification Authority?

It is, as I understand it, fairly customary for each new presidential administration to rewrite the Executive Order on classification. George W Bush didn’t do so right away — he finalized his classification EO on March 23, 2003. Obama moved a bit more quickly, superseding the Bush EO with his own classification EO on December 29, 2009.

But even among the flood of Executive Orders that Trump has signed thus far in his term, I don’t believe he has modified the Obama one.

That means a change made in 2003, which was retained in the Obama EO, remains in place: the inclusion of the Vice President among those who is and can name Original Classification Authorities (here’s Bill Clinton’s EO for comparison). Here’s the language that gave Dick Cheney classification authorities:

Classification Authority. (a) The authority to classify information originally may be exercised only by:

    (1) the President and, in the performance of executive duties, the Vice President;

And here’s how Obama slightly tweaked that language to retain that authority for Joe Biden:

a) The authority to classify information originally may be exercised only by:

(1) the President and the Vice President;

Now, Cheney got this authority at an interesting time. That was a key time for Torture cover-up; in fact, sometime in that period, someone in the White House ordered George Tenet to make torture a Special Access Program. He was already pushing back against the CIA whistleblowers who knew the intelligence behind Iraq was crap, an effort that would lead to Scooter Libby sharing Valerie Plame’s identity with Judy Miller on Cheney’s orders (it remains unclear whether Cheney had Bush’s permission to leak this). Yet for some reason, the new classification rules appear most closely connected with Stellar Wind (I believe this had to do with a change in whom Stellar Wind could target).

In any case, from that moment forward, the Vice President has had the authority to classify things. As you can imagine, given Cheney’s role in the Plame outing, there was a heated and still publicly unresolved debate whether the Vice President also got declassification authorities, including of things that the President or Presidential authority had classified.

I raise this issue because more and more people have started raising questions about whether Mike Pence is sabotaging Donald Trump, especially as leaks like this come out of the White House.

President Trump told Russian officials in the Oval Office this month that firing the F.B.I. director, James B. Comey, had relieved “great pressure” on him, according to a document summarizing the meeting.

“I just fired the head of the F.B.I. He was crazy, a real nut job,” Mr. Trump said, according to the document, which was read to The New York Times by an American official. “I faced great pressure because of Russia. That’s taken off.”

Mr. Trump added, “I’m not under investigation.”

The conversation, during a May 10 meeting — the day after he fired Mr. Comey — reinforces the notion that Mr. Trump dismissed him primarily because of the bureau’s investigation into possible collusion between his campaign and Russian operatives. Mr. Trump said as much in one televised interview, but the White House has offered changing justifications for the firing.

The White House document that contained Mr. Trump’s comments was based on notes taken from inside the Oval Office and has been circulated as the official account of the meeting. One official read quotations to The Times, and a second official confirmed the broad outlines of the discussion.

If Pence believes — perhaps based on knowledge personally imparted by Cheney allies — that he has the ability to declassify anything that the President can, then he can leak details of White House events with utter impunity. Having him insta-declassify things would be a fairly safe way to feed the never-ending stream of embarrassing information coming out of the White House.

Oh, sure. He’d have utterly venal motive to do so. By feeding the Trump Russian scandal, Pence would make it increasingly likely he’d become President without having to expose his regressive views to the review of voters. But there’s nothing Trump could do about it so long as an EO granting Pence the same authorities that Cheney abused to great effect remains on the book.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

12 replies
  1. earlofhuntingdon says:

    Odd that the EO authorization classification does not include language regarding declassification authority. The Cheney experience would have been on everyone’s mind.

    Is declassification authority limited to the original classifier or a person higher in the pecking order? Or do you read the EO to mean that the president has delegated authority to the vice president to declassify whatever [ie, all] information the president could declassify?

  2. lefty665 says:

    It would seem likely Trump would be in an absolute ongoing rage about leaks by now. Yet we’ve seen no one strung up from the trees on the White House lawn as an example. Suppose he is not getting much help tracking the leakers down?

    Comey’s boys may have been too fixated on Russia to spend much time on it, and the SS may be consumed by figuring out how to catch fence jumpers. NSA could do it for him, but they likely have every hand on deck trying to track down Shadow Brokers or deciding which hole to tell Microsoft to plug next. What’s a president to do? It’s hard to get good help these days.

      • Avattoir says:

        Were Giraldi and I discussing there, I’d start by pointing out some of the more salient differences between the concepts of “conspiracy” and “soft coup” OTOH, & acting with fidelity to one’s oath of office on the other. Indeed, Giraldi actually concedes no conspiracy, so I’ll suggest here whatever he means by “coup” isn’t what most educated rational folks would think it means, but something more akin to the image Cheney projected when he described Obama as POTUS in South American banana republic terms, eg ‘when the Obama regime assumed power’.

        FWIW, note Giraldi’s piece was written for The American Conservative. A lot of the writing for that mag is way to reality oriented to be cast in the same toxic slurry as the Breitbart, Ace of Spades HQ, and most of NRO. But the standard of, say, Daniel Larsen is not nearly median at TAC. IMO Giraldi’s piece completely reflects a combination of certain expectations about that mag’s typical readership plus an agenda very much in keeping with Nixonian paranoia.

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