Secrecy News

An Authorized Disclosure of Classified Information

Updated below

President Trump’s disclosure of classified intelligence information to Russian officials, reported by the Washington Post, may have been reckless, damaging and irresponsible. But it was not a crime.

Disclosures of classified information are not categorically prohibited by law. Even intelligence sources and methods are only required to be protected under the National Security Act from “unauthorized disclosure.” This leaves open the possibility that disclosures of such classified information can actually be authorized. And we know that they are, from time to time.

One statute in particular — 18 USC 798 — does come close to matching the circumstances of the Trump disclosure to Russia, with a crucial exception.

That statute makes it a felony to disclose to an unauthorized person any classified information “concerning the communication intelligence activities of the United States or any foreign government; or […] obtained by the processes of communication intelligence from the communications of any foreign government.”

But it further explains that an “unauthorized person” is one who has not been “authorized to receive information… by the President.”

This morning, President Trump tweeted that “As President I wanted to share with Russia (at an openly scheduled W.H. meeting) which I have the absolute right to do, facts pertaining to terrorism and airline flight safety. Humanitarian reasons, plus I want Russia to greatly step up their fight against ISIS & terrorism.”

(Was the gratuitous parenthetical phrase “at an openly scheduled W.H. meeting” intended to rule out a clandestine transfer of classified information?)

All of that is to say that this episode, though it may have far-reaching ramifications for national security, is probably not a matter for law enforcement. (Based on the reporting by the Washington Post, the President’s actions did violate the terms of an intelligence sharing agreement with a foreign government that supplied the information. But that agreement would not be enforced by the criminal justice system.)

Instead, this is something to be weighed by Congress, which has the responsibility to determine whether Donald J. Trump is fit to remain in office.

Update, 05/17/17: For contrasting views arguing that Trump’s disclosure of classified intelligence to the Russians may actually have been illegal, see Marty Lederman and David Pozen, Liza Goitein, and Stephen Vladeck.

Update, 05/23/17: See also Trump’s Disclosure Did Not Break the Law by Morton Halperin, Just Security, May 23.

2 thoughts on “An Authorized Disclosure of Classified Information

  1. Personally, I believe this would not even be an issue if Obama had been president. This is just “another” method of attack by the far Left Progressive Wacko’s who can’t handle losing. (not to mention to distract us from their own transgressions).
    These attacks will continue throughout Trump’s entire term of office despite what he does for our country – as contrasted by Obama – who did nothing but put us down and apologize across the globe to all, for any “perceived” American transgression whether true or not. In “my” opinion, Obama did nothing in eight years but blow our money and divide our nation. Trump could save a puppy from a burning house “live” on camera, and be blamed for causing the fire. The dichotomy of media reporting is both obvious and horrendous.

    1. Were you paid by Putin’s kleptocracy to write this outrageous diatribe or paid directly by Trump’s family or retainers?

      Obama divided our nation? Not Trump? Do you read even the right leaning polls? We are more deeply divided by Trump than any time since the Civil War.

      Obama did nothing, you say. Yet he got us out of the great recession (caused by policies of the previous Republican administration and well underway when he took office). We now have the lowest unemployment in decades.

      He didn’t deploy troops to Iraq, Afghanistan, and Syria and authorize massive air attacks?

      Please carry out your(probably paid) trolling elsewhere.

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