§ 4.4 of Executive Order 13526 contemplates an agency waiving § 4.1’s “need-to-know” criterion when granting former Presidents access to classified information.1 Robert Hur implies that a § 4.4 waiver would serve as benediction for unorthodox storage arrangements.2 Jack Smith certainly reads Hur that way.3 According to Smith:
Under the provisions of EO 13526, the Superseding Indictment alleges, once Trump left office, he no longer had authorization to possess classified information, he never received a waiver entitling him, as a former President, to possess it, and he stored documents at a location that was not an authorized location for the storage, possession, review, display, or discussion of classified documents.4 [emphasis added]
In cases of waiver, Executive Order 13526 instructs the granting agency to warrant that secret information “is safeguarded in a manner consistent with this order.”5 § 6.1 (kk) of the order specifies that “‘‘Safeguarding’’ means measures and controls that are prescribed to protect classified information.”
The State Department’s Security Information Regulations set forth waiver protocol at 22 CFR 9.13. It is de rigueur that the requester give written assurance “to safeguard the information from unauthorized disclosure or compromise” (22 CFR 9.13(b)(2)) and permit “the Department to review any notes and manuscripts created as a result of access” (22 CFR 9.13(b)(3)). 22 CFR 9.13(d) specifies that “[a]ccess granted under this section shall be limited to items the official originated, reviewed, signed, or received while serving as a Presidential or Vice Presidential appointee or designee or as President or Vice President.” The plain terms bar the State Department from granting a former President access to classified information it originated that never reached the Resolute desk, even in cases where such information was preserved in files of the National Security Advisor or NSC staff and the former President enjoyed a statutory right of access to it under § 2205(3) of the Presidential Records Act.
The State Department’s rules on “Storing and Safeguarding Classified Information”6 list Executive Order 13526 and 32 CFR Part 2001 among the “relevant legal authorities” under which the agency promulgated its internal regulations.7 Within 12 FAM 533 (“Removing Classified Material From Official Premises”), 12 FAM 533.1 deals with “Overnight Custody” and directs that “[c]lassified material may not be removed from official premises for reasons of personal convenience or kept overnight in personal custody” and that “[c]lassified material must not be taken to a home or hotel for unattended storage prior to or following a meeting.”8
It is counterintuitive that a waiver provision that insists on safeguards conceals sub rosa absolution for non-conforming storage practices. In the “Q Clearance” brouhaha, the Special Counsel reasoned:
…even if Trump possessed a Q clearance at any time after his Presidency (which he did not), that would still not entitle him to possess the document charged in Count 19 at Mar-a-Lago, an active social club that was not an authorized location for the storage, possession, review, display, or discussion of classified documents.9
If a full clearance could not put the stamp of approval on continued possession,10 how would a “need-to-know” waiver do the trick?
Signing off on the storage arrangements Hur describes does not appear to be within the State Department’s discretion for classified information under its control. Even if an originating agency is empowered to put ownership of classified information into private hands without declassification, a logical consequence of the Solicitor General’s Office’s oral argument in Kissinger,11 § 4.1(e) of Executive Order 1352612 might require the type of safeguarding measures the State Department Legal Adviser outlined in a memorandum for Henry Kissinger.13
As Hur pointed out, “need-to-know” is the only prerequisite to access that the Executive Order empowers an agency like the State Department to waive should it wish to share classified information with a former President.14 The prerequisites without waiver provisions are § 4.1(a)(1) and (2) (“favorable determination” and “approved nondisclosure agreement.”) A different Executive Order, 12968,15 requires a “favorable adjudication of an appropriate investigation of the employee’s background”16 before an agency grants access to classified information. Executive Order 12968 responded to mid-90s legislation,17 currently codified at 50 USC § 3161(a)(1)18 making background investigations mandatory unless the President grants an exception.
Has any agency, whether or not it issued a waiver, made a former President sign a non-disclosure agreement before granting access to classified information? If the non-disclosure agreement is not waivable but agencies have either not required it or not bothered to obtain superseding Presidential authorization, it would be further evidence that executive branch agencies do not follow the executive order when sharing classified information with former Presidents.
Executive Order 13526, §§ 4.4(a), 4.4(a)(3)
Hur Report, pp. 179-80 [emphasis added]: “For all of the classified materials recovered during this investigation, after the vice presidency, Mr. Biden did not receive a written waiver of the need-to-know requirement, and no agency official made the findings required by the executive order. Therefore, Mr. Biden's possession of those materials in unsecured spaces in his home after his vice presidency was unauthorized within the meaning of the Espionage Act.”
Government’s Opposition To Defendant Donald J. Trump’s Motion To Dismiss The Indictment Based On Selective And Vindictive Prosecution, 3/7/24, p. 6: “Hur Report at 255; see id. at 180 (noting that, absent “a written waiver of the need-to-know requirement” or other “findings required by [Executive Order 13526],” the “possession of [classified] materials in unsecured spaces” is “unauthorized within the meaning of the Espionage Act”).”
Executive Order 13526, § 4.4(b)(2)
12 Foreign Affairs Manual 530 and following, 8/21/23; see also 12 FAM 510 (“Safeguarding National Security And Other Sensitive Information”)
12 FAM 531.1, 11/7/22
12 FAM 533.1, 11/7/22
Government’s Response In Opposition To Defendants’ Motion To Compel Discovery, 2/2/24, p. 49 n.24: “But even if Trump’s Q clearance had remained active, that fact would not give him the right to take any documents containing information subject to the clearance to his home and store it in his basement or anywhere else at Mar-a-Lago. No Q clearance holder has authorization to remove documents from a proper place of storage and keep them for himself.”
Oral argument, Kissinger v. Reporters Committee for Freedom of the Press, 10/31/79, p. 40: “We do, however, accept that part of the legal adviser’s opinion which seemed to say that at the end of the usefulness of those notes, after the extracts were prepared, if they were properly prepared, then because they would be non-record material under the records management program, the agency would be free to dispose of that property by allowing Dr. Kissinger to retain it.”
Executive Order 13526, § 4.1(e): “Persons authorized to disseminate classified information outside the executive branch shall ensure the protection of the information in a manner equivalent to that provided within the executive branch.”
Disposition of Your Papers and Telephone Memoranda, Action Memorandum of State Department Legal Adviser, 5/11/76, p. 10: “Moreover, the access contemplated in the executive order and regulations does not specifically preclude the storage of copies of a former official's files outside of Washington, D.C. It only requires that steps be taken to protect classified information. This means compliance with government security regulations in storing documents. These regulations would obviously be satisfied if copies of classified records were stored at a government facility, such as the USUN in New York or a regional depository under the National Archives (see Tab 12). Conceivably, approval could be obtained for storage at a private institution that had adequate security (see Tab 9). It should be noted, however, that since 1960 the only Department official to have requested and obtained approval for storage at a private institution is G. Mennen Williams. Although a particular institution may now have a classified collection, a separate security approval would have to be obtained if your papers were to be stored in that institution.“
Hur Report, p. 17: “For former presidents and vice presidents, the order expressly allows for the need-to-know requirement (but not the others listed above) to be waived by an agency.”
Executive Order 12968, 60 F.R. 40245, (August 7, 1995)
Executive Order 12968, § 1.2(c)(1). Note: § 1.1(e)’s definition of “employee” is almost all-encompassing: “‘Employee’’ means a person, other than the President and Vice President, employed by, detailed or assigned to, an agency, including members of the Armed Forces; an expert or consultant to an agency; an industrial or commercial contractor, licensee, certificate holder, or grantee of an agency, including all subcontractors; a personal services contractor; or any other category of person who acts for or on behalf of an agency as determined by the appropriate agency head.”
Intelligence Authorization Act for Fiscal Year 1995, Pub. L. 103–359, title VIII, §801(a), Oct. 14, 1994, 108 Stat. 3435