President Trump’s JFK Declassification Decree Has Potential Vulnerabilities
The intelligence community may try to exploit loopholes in his executive order
Editor’s note: This is an updated version of a story that was mistakenly sent previously before it was complete.
President Trump took a first step toward fulfilling a major campaign promise when he issued an executive order purporting to declassify all government records pertaining to the assassination of President Kennedy in 1963, along with those of Sen. Robert F. Kennedy and Rev. Dr. Martin Luther King Jr. in 1968.
However, because of the way the executive order is structured, it is unclear when the records will actually be released or whether this will simply produce another version of the Orwellian-named “Transparency Plans” that President Biden approved in 2023.
Trump vs. Biden
Under the President John F. Kennedy Records Collection Act of 1992 (JFK Act), assassination records may be declassified unless the President determines that the identified harms to national security are of such gravity that they outweigh the strong public interest in disclosure.
President Trump’s order does not precisely track the statutory standard, since it doesn’t make the express finding that the public interest outweighs the purported harms to national security. Rather, his decree provides, simply, that “it is in the national interest to finally release all records related to these assassinations without delay,” and that he has determined that “the continued redaction and withholding of information from records pertaining to the assassination of President John F. Kennedy is not consistent with the public interest and the release of these records is long overdue.”
In scope, this language is sweeping and theoretically all-encompassing.
But having made the finding that it is in the public interest for the government to make a “full and complete release” of all JFK assassination records, the President could have directed the Archivist to remove all redactions from the assassination records in the possession of the National Archives, and to make them available to the American people.
Instead, paragraph 2(a) of his executive order instructs the Director of National Intelligence (DNI) and the Attorney General (AG) to work with the Assistant to the President for National Security Affairs (National Security Advisor) and the White House counsel to develop a plan for releasing the records within 15 days. Moreover, the order neither revokes the prior Biden orders postponing disclosure nor invalidates the “Transparency Plans,” so that these still remain in effect even after the executive order.
By simply saying the time had come to release the records without invoking his authority to certify immediate release, Trump has reaffirmed how cautious presidents can be when it comes to national security. Until a new plan is approved, the CIA and other agencies may rely on a loophole, insisting that the “Transparency Plans” give them veto power.
There are several concerns with this approach.
A Standard Beyond the Statute
First, in stating that it is in the public interest to disclose records, did the President mean he had determined that the public interest outweighed the identified harms? Or was this simply a recitation of Congress’s original findings when it passed the JFK Act?
It is unclear whether neglecting to track the statutory language was deliberate or simply a result of the President’s desire to quickly issue the executive order. Disregarding the JFK Act’s language may create another loophole for the agencies that have resisted disclosure for over six decades to engage in more postponement mischief.
Second, from a timing standpoint, Congress has yet to confirm all of President Trump’s nominees to the relevant positions, such as DNI, AG and FBI director. The acting heads of those agencies probably can’t make or approve declassification decisions. Even if they could, it would be unwise to leave this decision to the acting leadership, since there is no evidence thus far that they share Trump’s JFK declassification goals.
President Trump recently replaced the acting DNI, a long-time CIA employee and Biden appointee, who was unlikely to undermine the agency’s own “Transparency Plans” providing for future declassification reviews in the 2040s or later.
The views of her replacement — appointed to the National Counterterrorism Center (NCTC) under the Obama administration — regarding JFK assassination transparency are unknown. Unless Congress confirms the President’s DNI, AG and FBI nominees in the next two weeks, the Feb. 15 deadline could very well slip into March at the earliest.
Third, the order relies on the same agencies that developed the “Transparency Plans” to prepare a declassification plan. It is unclear whether Trump intended this plan to be merely a ministerial effort, whereby the agencies explain how they will expeditiously remove the remaining redactions and inform the Archivist to release records in full.
In the way the order is drafted, however, nothing would prevent the agencies from developing a plan that calls for yet another round of declassification reviews, in which the harms are reevaluated and weighed against the public interest. If this is what the agencies propose to the President, this will likely result in just another version of the “Transparency Plans,” which do not provide for an expeditious release of the records.
Last week, President Trump told Sean Hannity that he had agreed to postpone the JFK records at the request of then-CIA Director Mike Pompeo because he thought Pompeo and the other members of the NSC had the best interests of the country in mind. If his appointees again recommend withholding some or many of the records, will Mr. Trump once again reverse his finding and allow the continued redaction of the records?
Fourth, the order refers to records in the possession of the federal government. Readers of JFK Facts are well aware that the JFK Collection maintained by the National Archives (NARA) does not represent the full universe of extant federal records relating to the assassination of President Kennedy. Is President Trump’s order limited to redacted records within the JFK Collection, or does it apply to all the assassination records in the possession of federal agencies that have not been transferred to the JFK Collection?
Ghost of the ARRB
During the record reviews of the past administrations of Trump and Biden, no effort was made to address the assassination record search requests that were outstanding when the Assassinations Records Review Board (ARRB) ceased operations on Sept. 30, 1998, even after members of the research community informed NARA of records that were not in the JFK Collection, and even after the then-NARA’s general counsel told researchers to advise NARA of assassination records outside the JFK Collection.
Moreover, the Department of Justice (DOJ) became aware of such records as part of several lawsuits filed under the Freedom of Information Act (FOIA) and the JFK Records Act. Based on past reviews, President Trump’s order very likely will be viewed as applicable only to the redacted records within the JFK Collection. The order certainly does not contain any language instructing agencies either to complete old search requests or to conduct new searches.
Some of the more important records not currently in the JFK Collection are:
The George Joannides files.
The Situation Reports of the CIA’s Miami investigation over the weekend of the assassination mentioned in the 1977 memo that Donald Heath provided to the House Selection Committee on Assassinations (HSCA).
The files of the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities (SSCIA or “Church Committee”), which DOJ has argued in court are executive — not legislative — records and therefore may be released only by the President.
Classified documents from the Oval Office removed by Attorney General Robert F. Kennedy within hours of the JFK assassination and which are stored in the JFK Library. The ARRB was in the process of negotiating for the release of these records with the RFK Family Trust when it ceased operating.
Records that the CIA was to search for pursuant to the 1998 Memorandum of Understanding executed by the CIA, ARRB and NARA.
The Walter Sheridan files that the ARRB determined were assassination records and sought in a lawsuit after the NBC television network refused to turn over the materials. When the ARRB went out of business, the lawsuit was discontinued.
The film shot by WBAP-TV cameraman James Darnell (the “Darnell Film”), which some believe depicts Lee Harvey Oswald standing in the entrance of the Texas School Book Depository (TSBD) at the time of the assassination, and which NBC has refused to turn over for digital analysis.
The FBI recording from the CAM-TEX sting operation in which New Orleans Mafia boss Carlos Marcello allegedly confessed to his cellmate — an FBI informant — that he was behind the assassination. These tapes were sealed by a federal court. They were never evaluated by the ARRB and were never transferred to NARA.
The Path Ahead
To help ensure that President Trump’s order casts as wide a net as possible, we are contacting the Office of White House Counsel, so that they are aware that the JFK Collection is not the universe of records held by the federal government.
A possible positive development that could help to fully declassify the JFK records is President Trump’s recent removal of approximately 160 members of the National Security Council (NSC). During the first Trump term and the Biden administration, the NSC played a crucial role in the government’s review and decision to continue to withhold JFK records.
Here’s hoping that President Trump’s nominees and the new staff that President Trump names to the NSC will accomplish the goals of the executive order to release all of the records pertaining to the assassination of President Kennedy.
To achieve this, the plan should simply inform the President how each agency will implement his command to release the records in full (e.g., identify the individuals who will instruct the Archivist to release the records, how the lifting of the redactions will be performed, how the unredacted records will be transmitted to the Archivist, etc.). Since the president has already determined that disclosing the records is in the public interest, the plan should preclude another round of substantive review.
During the first Trump term and Biden administration, the only party advocating for the public interest was NARA. But NARA could only make recommendations for disclosure, all of which were ignored. Apparently, the intelligence community took the position that protecting national security was the only public interest that mattered — in direct violation of the balancing test of the JFK Act.
If the plan calls for a substantive review of any records for continued postponement, the President should appoint an independent board comprised of JFK Act subject matter experts (perhaps selected by Robert F. Kennedy Jr.) that would operate in the manner of the ARRB in reviewing and rendering decisions on any requests for postponement.
As with the ARRB, any decision to override a postponement request could be appealed to the President. This would ensure that an advocate for the public interest would be in the room when postponement decisions are made.
Only in this way can the American people have confidence that a postponed document truly poses a legitimate harm to national security — as opposed to some hypothetical risk — and that the decision to postpone was made only after the gravity of the harm was actually identified, then balanced against the strong public interest in disclosure.
Finally, there will still be a role for Congress even if President Trump’s order results in a complete release of all of the records in the JFK Collection. The current version of the JFK Act excludes from disclosure certain tax records and deeds of gift, such as the interviews that William Manchester did with Jackie and Robert Kennedy.
Representative David Schweikert has introduced a bill that would remove these restrictions from the scope of the JFK Act. Hopefully, Congress will pass the Schweikert bill so that the American people can finally see each and every record related to the assassination of President Kennedy.
It seems with every passing year, decade even, that the « national security » argument bandied by the intelligence community should lose more and more traction till it reaches a deafening crescendo of absurdity and patent self-interest. So let’s just, for argument´s sake, posit the CIA had a hand in the assassination. What would the reputational – and other, attendant – harms be to the USA in that becoming worldwide, public knowledge? That’s how the “national interest” could be viewed, no?
Great article. Thank you for posting this very important information. The CIA will fight to the end I am afraid. Let’s hope that full transparency wins out