S3E23: Classified Docs - Espionage Act, Executive Orders & the Constitution

A former U.S. president has been indicted on charges of mishandling classified documents, including the willful retention of classified information and obstruction.

The 49-page indictment of Mr. Donald Trump can be accessed via the following journals: NYTimes & WSJ.

Did you know that the definition of classified information is largely dependent on presidential executive orders? And did you know that President Richard Nixon's executive order on classified information, is the model that many look to for clear examples of what type of disclosures may cause damage to our national security and, hence, should be protected as classified information?

In this episode, Professor Heidi Kitrosser speaks to us about the willful retention of national defense information, and the legal implications of such conduct under the Espionage Act. She will also directly address Mr. Trump's retention of classified documents in Mar-a-Lago. In addition, she'll tell us about the history of classified information, e.g., what constitutes classified information? Who can designate information as classified? Who has access to them? And how all of this plays out in our system of separation of powers? With regards to this last point, Prof. Kitrosser points out something interesting - that U.S. courts and Congress may be intentionally skirting the responsibility of defining and categorizing classified information. She explains why this may be to their political benefit.

Ms. Kitrosser is a professor at Northwestern University Pritzker School of Law. She is an expert on the constitutional law of federal government secrecy, and on separation of powers and free speech law more broadly. She is the author of the following book: Reclaiming Accountability: Transparency, Executive Power, and the U.S. Constitution, which was awarded the 2014 Chicago-Kent College of Law / Roy C. Palmer Civil Liberties Prize. She is on the steering committee of a new initiative – the Free Expression Legal Network (FELN) spearheaded by Yale’s Media Freedom and Information Access Clinic and the Reporter’s Committee for Freedom of the Press. To learn more about Professor Kitrosser, you can visit her academic homepage, the link for which is provided in the detailed caption of this episode.

I spoke with Prof. Kitrosser back in October, when the investigation into former President Trump's documents in Mar-a-Lago and its coverage in the news media started to really intensify. As you will note, that earlier conversation is highly relevant to our current news. You may also be interested in an earlier episode, in which, my guest, Prof. Michael Gerhardt, answers the following question: can Mr. Trump be disqualified from running for president? Prof. Gerhardt and I also talked about Andrew Jackson, Grover Cleveland and Richard Nixon, who were all struggled to reach or return to the White House in one way or another, and we compared them to Mr. Trump. Click here to listen: https://bit.ly/HbN-S2E41

I hope you enjoy these episodes.

Adel

Host of the ⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠History Behind News⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠ podcast

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