Secrecy News

Legality of the Trump Disclosures, Revisited

When President Trump disclosed classified intelligence information to Russian officials last week, did he commit a crime?

Considering that the President is the author of the national security classification system, and that he is empowered to determine who gets access to classified information, it seems obvious that the answer is No. His action might have been reckless, I opined previously, but it was not a crime.

Yet there is more to it than that.

The Congressional Research Service considered the question and concluded as follows in a report issued yesterday:

“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.” See Presidential Authority to Permit Access to National Security Information, CRS Legal Sidebar, May 17, 2017.

This tentative, rather strained formulation by CRS legislative attorneys indicates that the question is not entirely settled, and that the answer is not necessarily obvious or categorical.

And the phrase “in keeping with his power and responsibility to advance U.S. national security interests” adds an important qualification. If the president were acting on some other agenda than the U.S. national interest, then the legitimacy of his disclosure could evaporate. If the president were on Putin’s payroll, as the House majority leader lamely joked last year, and had engaged in espionage, he would not be beyond the reach of the law.

Outlandish hypotheticals aside, it still seems fairly clear that the Trump disclosures last week are not a matter for the criminal justice system, though they may reverberate through public opinion and congressional deliberations in a consequential way.

But several legal experts this week insisted that it’s more complicated, and that it remains conceivable that Trump broke the law. See:

“Don’t Be So Quick to Call Those Disclosures ‘Legal'” by Elizabeth Goitein, Just Security, May 17, 2017

“Why Trump’s Disclosure to Russia (and Urging Comey to Drop the Flynn Investigation, and Various Other Actions) Could Be Unlawful” by Marty Lederman and David Pozen, Just Security, May 17, 2017

“Trump’s disclosures to the Russians might actually have been illegal” by Steve Vladeck, Washington Post, May 16, 2017

Update, 05/23/17: But see also Trump’s Disclosure Did Not Break the Law by Morton Halperin, Just Security, May 23, 2017.

4 thoughts on “Legality of the Trump Disclosures, Revisited

    1. Is that really so though? I certainly do not endorse the actions of anyone if they are acting against the interest of the collective, isn’t that the entire point of free speech is to point out harmful behavior?

  1. I agree with what you say about the president deciding who gets access to classified information. However – when discussing sources and means, the code word dictates who it is released to no questions asked. This is to protect those in the field those that gave the information. It is wrong. Maybe not criminal but wrong. Just as Bush identified the CIA agent which was criminal and got away with it, Trump most likely will continue to reveal sources and means at his discretion with no oversight. I was in and am still in the Intel field. He should be taught how the system works and just because he can does not mean he should.

  2. Top down and fractured communication is an administrative modus operandi exercised by the likes of Dick Cheney e.g. Dick Cheney and his “Loop”. The result is the failure to share information and authority with the CIA. Two tier question that I am not qualified to answer: (1) Were Al Qaeda’s capabilities underestimated prior to 9/11? And (2) if so, was top down and fractured communication a factor? Is top down and fractured communication the reason for Trump’s sharing of classified information? It is not just any President that shared classified information. It is a President who told 62 “Pants on Fire” lies proven by Pulitzer Prize winning PolitiFact.

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