Presidential Authority to Permit Access to National Security Information [May 17, 2017] [open pdf - 115KB]
"It appears more likely than not that the President is presumed to have the authority to disclose classified information to foreign agents in keeping with his power and responsibility to advance U.S. national security interests. As President Trump recently asserted, his 'authority to classify and control access to information bearing on the national security flows from the Constitution and does not depend upon a legislative grant of authority.' As one observer noted, the language appears to be drawn from a 1988 Supreme Court case, 'Department of the Navy v. Egan', in which the Court held the Merit Systems Protection Board could not review an agency decision denying an employee a security clearance. While some interpret 'Egan' as recognizing that the President has virtually plenary authority to control classified information, the Court has suggested elsewhere that 'Congress could certainly [provide] that the Executive Branch adopt new [classification procedures] or [establish] its own procedures--subject only to whatever limitations the Executive Privilege may be held to impose on such congressional ordering.' Congress has legislated with respect to classified information on numerous occasions, some of which are outlined in this CRS [Congressional Research Service] report, while also generally deferring to the executive branch regarding the classification -- and declassification -- of national security information."
CRS Legal Sidebar, May 17, 2017
Federation of American Scientists: http://www.fas.org/sgp/crs/index.html