But how can the new President reclassify something if he's not even sure what those documents are?

@JonathanReez The new president, or anybody else in the government authorised to classify things, simply goes through the standard process of classification; I don't see anything stopping them from doing this with documents that may not yet have been declassified. But what I think you're asking here is, "What if Trump declassified them without telling anyone and the documents were not in a (possibly empty) set of documents that were explicitly reclassified after Trump left office?"

In that case, for documents Trump could declassify (i.e., not in category 1 above), the government seems highly unlikely to be able to successfully prosecute those who took the documents to Mar-a-Lago for improper handling of the documents. Even if they're later reclassified, if by that point they've been removed from Mar-a-Lago, there seems no case to prosecute. That said, it seems perfectly reasonable for them to continue investigating whether mishandling occurred until they're informed that the documents in question are not classified.

Also note that any potential prosecution for mishandling may not involve Trump personally at all. It seems perfectly plausible that Trump did not intentionally order classified documents to be moved to Mar-a-Lago and instead it was someone on his team who took the initiative on this. Nor, even if prosecution seems possible, is it a done deal; the government gets to decide whether they prosecute or not and may just decide that, if they've now got the documents stored securely again, they're happy with that and need do nothing more.

"he could claim that he declared them declassified and no paperwork would have been necessary" I don't judge the answer, just saying that if that would be true, this would be rather a really bad solution. You would never know if something is declassified or not. Everything could still be classified or not classified, which would be a crazy situation. I really hope there is a better solution in place.

@Trilarion Well, presumably the normal route for presidential declassification would be for him to inform the Information Security Oversight Office of the documents he or she wishes to declassify, and they would take care of making a record of this, informing the right people, getting the actual documents stamped "declassified," and so on. And given that taking that route would avoid potential pointless investigations, you'd think that most presidents would do this.

You might argue that the laws should be written in a way that actively prevents the president from creating chaos by not following the above procedure, but I'm not sure I see a lot of point: the president has plenty of other ways of creating chaos anyway. And, at least until recently, it seemed reasonable to expect presidents to follow whatever conventions were in place for use of their powers.

Surely the new president on taking office waved his hands around and declared to himself that any documents the former president declassified and took to his golf resort are re-classified. And we would just have to believe him just as we have to believe the former president about his internal monologue. - this is why there is procedure and paperwork.

@Lag I am not aware of any law or regulation that allows anyone to reclassify things in such a way, especially with such a vague description of what's being classified (or reclassified). The laws and regulations about originating classification, unlike presidential declassification authority, have fairly well defined procedures. Given how sensitive this Mar-a-Lago situation is, I'd expect to see prosecution related to those documents only where there's been obvious and egregious mishandling that has clear negative consequences.

@Lag EO 13526 seems to have no relevance here; its purpose is to increase declassification and I see nothing in it to decrease the ability of the president to declassify things. Given that over-classification is a well-acknowledged problem, it seems sensible to welcome presidential (or any other) declassification of documents that have no good justification for being classified. (I have no idea if any of the documents in this situation fall into that category, however.)

@cjs "for documents Trump could declassify..., the government seems highly unlikely to be able to successfully prosecute those who took the documents to Mar-a-Lago for improper handling of the document": the government can use the Espionage Act to prosecute the improper handling of the documents regardless of whether they are classified or not. The Espionage Act protects documents that can be used against the United States without regard to their classification status.

@cjs furthermore, the presidential records act makes these records the property of the federal government, despite Trump's claims to the contrary.

@phoog Well, the PRA makes records generated by the Trump administration property of the federal government. That is unrelated to confidentiality of records, and of course doesn't apply to any records generated by other parts of the government. I address the PRA side of things in this answer to a related question by the same poster. (That answer, where I carefully distinguish the PRA issue and the confidential information issue, appears to be what inspired this question.)

@cjs the PRA covers records "created or received by the President, the President’s immediate staff, [etc.]." Note "or received by." While the act does exclude "official records of an agency," these are federal property for other reasons. Separating concerns of confidentiality and custody is useful for some purposes, but it can also leave readers with the incorrect impression that the only potential negative consequences of keeping the documents depend on whether they were classified.

@phoog The "incorrect impression" might arise here only because you're bringing up things unrelated to the actual question at the top of the this page. Read it carefully and you'll see that it's only about whether allegedly improper handling of confidential documents can be mitigated by reclassification. If you want to discuss the PRA, you should do that at the OP's other question specifically about that, which is linked not only in my comment above but also to the right of the question at the top of this page. (And I see you have done so.)

@cjs the question mentions evidence and asks about declassification, but fails to consider whether improper handling of classified documents has been alleged. It was certainly not alleged in the search warrant, which cites 18 USC 793, not 18 USC 798. So I was reacting to your statement about prosecution "for improper handling of the documents." Perhaps you meant to say "improper handling of classified documents." But for these documents, there are other statutes that criminalize improper handling, and those are the statutes actually invoked in the search warrant.

@phoog Yes, I meant "improper handling of classified documents." The question actually asked here is clearly about classified documents and their declassification. Neither the contents of the search warrant nor the contents of the PRA change the answer to, "Could Trump claim that these are actually declassified documents because he declared them as such before leaving the White Office?"

@Trilarion one of the things highlighted by the trump presidency was how many things taken for granted in government were the result of everyone following established norms, not codified rules.

according to the NYT notifying people is part of the process "Glenn S. Gerstell, the top lawyer for the National Security Agency from 2015 to 2020, pronounced the idea that whatever Mr. Trump happened to take upstairs each evening automatically became declassified — without logging what it was and notifying the agencies that used that information — “preposterous.”" nytimes.com/2022/08/14/us/politics/…

This situation of waving president hands brings up all sorts of amusing images of trucks of documents driving by with the president, arms supported like Moses by his aides, wiggling his fingers over the trucks to bless and classify them and their contents...

From what I've read from others, the "no additional paperwork" party is almost certainly not accurate, because how everyone else in the world treats that information is impacted by the status. Usually, the "on a whim" declassifications revolves around someone needing to see that material, on the spot, but not being cleared for it. Imagine the legal nightmare if we prosecute and incarcerate a Chelsea Manning for decades, and it winds up a president "secretly declassified" materials and never bothered telling anyone else. So, no a secret, retroactive "declassification" is probably not right.

.... But, if that's the case, I guess I can post an answer with the relevant sourcing. This is more a comment about the claim in the Atlantic. Not a criticism of your answer, per se.

The president may not have to file any paperwork, but someone, somewhere has to. And likely quite a bit of it.

@computercarguy - Yes, but having a staff-lackey do it for him is, de facto, the president doing it. The guy in the Atlantic was essentially saying they don't have to say that to anyone. However, that might be self-serving on his part, since he was the guy in charge of that office when Cheney and Bush outed Valerie Plame, and no one was held accountable for it. Perhaps asking someone who held that office in an administration where there wasn't a scandal on their watch might have been a better source.

Just because there is no supreme court precedent on this doesn't mean that the president doesn't have to follow the procedures.

@JoeW But it very definitely does mean that if the president does not follow the procedures you wish he would follow, you cannot with certainty say that he was wrong not to do so.

Just because the supreme court hasn't heard a case about some rules and procedures doesn't mean that the president doesn't have to follow them.

If a piece of paper bears a classification marking, people handling it are required to handle it appropriately even if other pieces of paper containing the same information would be unclassified, unless the paper contains markings stating that the material has been unclassified, and identifying who did it and when. If Trump were to mark all the papers as being declassified by President Donald Trump and giving the date, that might be sufficient to declassify the documents even if there were no other paperwork, but at minimum he would be required to have the papers re-marked.

@cjs I was under the impression that nothing about the law in question actually requires that the documents be classified.

@trlkly Which law are you talking about, specifically? It sounds as if you may not be talking about this question, but perhaps about the Mar-a-Lago search warrant. (This question may be related to that, but it's not specifically about that. There are others on this site that are, such as this and this.)

@supercat I see nothing at this point that indicates that Trump is required to have the papers over which he has classification authority remarked. (There is no statute law about this, nor any court ruling about whether Trump himself must follow executive orders.) Certainly you'd still be able to prosecute people for mishandling documents marked classified, but that's about the markings, not their actual classification status.

@cjs: The rules I remember from some training implied that someone in possession of materials that are marked as classified would be forbidden from handling them in a manner inconsistent with such marking, or leaving them unattended in an area which is not secured in an regulation-approved manner. I don't know if markings added by the President would be sufficient allow a document to be treated as unclassified, but from what I recall of my training, a paper document marked as classified is a classified document even if the same information exists in unclassified form.

You also have to actually take affirmative action to declassify while you are still President. And, without paperwork it is very hard to prove that you did so.

@ohwilleke Sure, but how much does that matter? If someone says he declassified documents while president, a prosecution probably isn't going to get very far trying to prove that he didn't declassify them. (This may not be a good situation by some views, but it is what it is; if congress doesn't like this they can try passing some laws instead of just letting the president do what he likes.)

@cjs "a prosecution probably isn't going to get very far trying to prove that he didn't declassify them." You underestimate prosecutors. This is the kind of thing that they prove all the time (not the exact declassification by similar evidentiary challenges).

@ohwilleke A prosecution would probably have little difficulty proving that Trump did not produce any documentation that he'd declassified something. As I discuss in my answer, we have no rulings that he must produce such documentation, so it's an open question. (Therefore your previous comment is not fact, it's speculation.) If he need not, the only evidence available is what the president says, and you essentially have a president or ex-president saying "I did this but didn't document it," and the prosecution saying, "no you didn't." Not going to get very far.

@cjs Trumps barrage of inconsistent justifications for his actions once caught makes proving this a lot easier than mere speculation, and at a minimum a declassification has to be communicated to someone - it isn't a purely internal subjective mental state.

@ohwilleke If you believe a declassification by the president must be communicated, you should post an answer about that with justification. Posting comments on other answers simply saying "wrong" (if not in so many words) is pointless. ¶ Trump's justifications or other comments about this are essentially irrelevant to this question; he is a) highly biased and b) not well versed in law, or even reasoning. WRT this question, I suggest you simply ignore anything Trump says, as I do.