On its face, the indictment of Donald Trump for mishandling classified documents is less persuasive than might at first appear. I spent most of my professional life as a legal scholar—including more than three decades as a professor at a top-ten law school—with a special focus on the separation of national security powers. Three presidents of the American Bar Association appointed me to chair their prestigious Standing Committee on Law and National Security, and I edited their National Security Law Report for several years thereafter.

Some of the former President’s critics emphasize that not even the President is “above the law.” And that is certainly true. But what is the controlling “law” in this case? In our system, we have a hierarchy of laws starting with the Constitution itself. As the Supreme Court noted in the landmark 1803 case of Marbury v. Madison, “an act of the legislature, repugnant to the constitution, is void.”

Space limitations will not allow me to elaborate on the content of the nation’s “executive Power” vested in the President by Article II, Section 1, of the Constitution. But it was a central focus of my 1,700-page, 3,000-footnote doctoral dissertation written decades ago, and I have discussed it at some length in congressional testimony and elsewhere. See, e.g, here and here.

Thomas Jefferson, James Madison, Alexander Hamilton, George Washington, John Marshall, and many other of the most respected Founders of this country noted, as Professor Quincy Wright observed in his 1922 classic, The Control of American Foreign Relations, “When the constitutional convention gave ‘executive power’ to the President, the foreign relations power was the essential element in the grant….” And that included complete control over intelligence matters.

Image: Donald Trump by Gage Skidmore. CC BY-SA 2.0.

The record is clear that the Founding Fathers did not trust Congress with the nation’s secrets. Indeed, in Federalist 64, John Jay explained that, while the Senate would have a negative vote over concluded treaties, the President “will be able to manage the business of intelligence in such manner as prudence may suggest.” The Senate did not even have an “intelligence committee” until the mid-1970s. As a Senate staff member at the time, I worked to limit the resolution.

When the First Congress appropriated money for foreign intercourse in 1790, the statute read in part: “[T]he President shall account specifically for all such expenditures of the said money as in his judgment may be made public, and also for the amount of such expenditures as he may think it advisable not to specify….” Congress realized it could not be trusted with sensitive national security secrets and that the Constitution had entrusted such matters to the President.

Indeed, in the 1988 Navy v. Egan case, the Supreme Court expressly recognized the constitutional basis of the authority to classify and declassify information, explaining, “The authority to protect such information falls on the President as head of the Executive Branch and as Commander in Chief.”

The Trump Indictment includes numerous references to three Executive Orders governing the classification and declassification of national defense information issued between 1995 and 2009 by Presidents Clinton, Bush, and Obama. But none of these were in any way binding upon subsequent Presidents. They were exercises of the constitutional grant of “executive Power” to the incumbent President, and Presidents routinely modify or repeal such Orders issued by their predecessors.

The Constitution establishes no procedural constraints on how that is done in cases like this, and Congress lacks the constitutional power to usurp the President’s discretion in this area. Congress does have an important role related to the protection of classified information because, while Presidents may terminate Executive Branch employees who violate relevant Executive Orders or agency regulations, the Fifth Amendment prohibits depriving Americans of “life” or “liberty” without “due process of law.” Thus, only Congress can provide for the incarceration (or execution) of Americans who mishandle classified information—including spying for our Nation’s enemies.

But sitting presidents are free to make public and even share with our nation’s enemies our most sensitive secrets. And there have been cases where presidents have shared highly classified information with people lacking appropriate security clearances and even foreign governments without formally declassifying it. Doing so may or may not be in the national interest, but that decision is ultimately the President’s call.

Donald Trump was America’s President until noon on January 20, 2021, when he and his family had already vacated the White House. Prior to that time, while still clearly possessing the nation’s constitutional “executive Power,” Trump decided to take certain classified documents with him to Florida. I don’t sense there is any serious contention that he could not have formally declassified them and so informed relevant governmental departments and agencies. Nor am I aware of any provision of the Constitution that requires him to give such notice or follow any other formalities.

Intentionally taking the documents with him, in my view, constituted presumptive declassification, and thus his continued possession was not a crime. The Presidential Records Act might have required Trump to provide copies of the documents he removed to the National Archives, but that issue is not addressed by this Indictment.

However, that presumption of declassification is rebuttable. And, based on information in the Indictment, Trump appears to have gravely undermined his own case. According to Paragraph 6 of the Indictment, on two occasions in 2021, Trump showed documents marked classified to visitors lacking appropriate clearances and, in one instance, declared: “[A]s President I could have declassified it,” but “Now I can’t, you know…this is still secret.” The account came from a Trump loyalist, not his political opponents, and it is thus difficult to see how his lawyers will persuade a jury that he declassified these documents before leaving office.

I am not addressing the serious procedural crimes with which Trump is also charged, like conspiracy and making false statements to investigators. Nor am I addressing the very troubling double standard by which the Department of Justice seems to have largely ignored the mishandling of classified information by Hillary Clinton and a range of apparent criminal misconduct by Joe Biden and/or his family.

Trump appears to be a victim of his own notorious ego. When I was Acting Assistant Secretary of State for Legislative Affairs during the Reagan Administration (1984-1985), I dealt with legislators who sought to impress visitors (or to win the goodwill of journalists) by disclosing classified information. It was a serious problem, and Joe Biden was one of the worst offenders. I find it remarkable that, even after serving as President, Donald Trump continues to be so insecure that he engages in similar misconduct to impress visitors. It may cost him dearly.

Prior to his 2020 retirement, Professor Turner was a Distinguished Fellow at the University of Virginia’s Center for National Security Law, which he co-founded in 1981. He authored the chapter on “Access to National Security Information” in the 1600-page law school textbook National Security Law & Policy, which he co-edited.