President Trump’s disclosure of highly classified information about the Islamic State to Russian officials has been widely decried as “terrifying,” “reckless,” and “deeply disturbing.” Yet commentators from across the political spectrum have echoed the President’s assertion that, as a matter of law, he nonetheless had “the absolute right” to make that disclosure. This rush to exculpation is puzzling because it is far from clear that the President acted lawfully. Moreover, the categorical version of this legal position—the view that “Nixon’s infamous comment that ‘when the president does it, that means that it is not illegal’ is actually true about . . . [c]lassified information”—cannot be right.
Before we get into the law, two quick observations on the disclosure itself:
First, the Administration’s own actions belie the claim by National Security Adviser McMaster that the President’s remarks to Russian Foreign Minister Lavrov and Ambassador Kislyak were “wholly appropriate,” caused no harm to national security, and “in no way compromised any sources or methods.” The National Security Council officials who learned of the President’s remarks moved with urgency to tell the CIA and NSA about what had happened, presumably because of the impending risk to the nation’s sources and diplomatic relationships. More revealing still is that Administration officials apparently spent a good part of Monday imploring the Washington Post not to publish the information the President shared with the Russians. Indeed, they actually persuaded the Post that “revealing [the information] would jeopardize important intelligence capabilities,” which is why the Post held back on the details. If McMaster and his White House colleagues continue to insist the President’s disclosure was benign, the Post might consider calling their bluff: “In that case, we assume you won’t object if we publish it on the front page.”[1]
Second, the potential harms from the disclosure go well beyond burning a particular source (which itself might be very consequential). If reports are to be believed, even before this episode, allies such as Israel and the United Kingdom were already wary of sharing intelligence with the United States because of President Trump’s impulsiveness, unsound judgment, and unusual affinity for Russia. As a number of commentators have pointed out, this latest revelation validates that wariness in spectacular fashion—Israeli intelligence officers are said to have remarked that it “confirmed” their “worst fears”—and thus threatens to undermine a wide range of intelligence-sharing arrangements. The revelation also makes it more likely that components of our country’s own Intelligence Community will feel increasingly wary about sharing sensitive information with the President, a development that would be deeply problematic for democratic governance and executive branch decision-making.
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In short, it appears that the President acted irresponsibly and destructively. But was it his “absolute right” to do so, as he tweeted yesterday morning? Or might he also have acted unlawfully?
In the hours after the Post story broke, a consensus quickly emerged that he did not. “We certainly don’t want any president to leak classified information,” Senator McCain commented, “but the president does have the right to do that.” “Because the classified information system was not established and is not regulated by congressional statutes,” the New York Times explained, “Mr. Trump has the power to declassify or disclose anything he wants.” A Post headline stated simply: “No, Trump did not break the law in talking classified details with the Russians.”
These assertions are correct in one significant respect. Since the early years of the Cold War, Presidents rather than Congress have established the system that governs the executive branch’s handling of national security information. The President not only determines what is and is not classified but also has authority to determine the circumstances under which executive officials and employees may share classified information with others. Such executive branch actors promise to adhere to the classification rules as a condition of their employment, and they expose themselves to civil sanctions, including loss of their security clearances and jobs, if they breach their nondisclosure agreements. But the President is the one who insists upon these employment conditions and sanctions in the first instance, in his role as head of the executive branch—and, in consequence, it is generally assumed that he is not subject to these internal rules. Put in slightly more technical terms, the Executive Order on Classified National Security Information defines “classified information” as information that requires “protection against unauthorized disclosure,” and the President is the ultimate source of “authorization” within the system he has created. Accordingly, in a case such as this one, where the President himself discloses the information, it becomes hard to argue that the disclosure is “unauthorized” for purposes of the Executive Order.
Even so, just because the President controls the classification system and that system’s nondisclosure limitations, it does not follow that every disclosure of information he makes to foreign officials is necessarily legal.
For one thing, there are other laws on “leaking” to consider: namely, the statutes Congress has enacted. Most of the criminal provisions at issue in leak cases do not by their terms prohibit disclosure of classified information as such. In particular, sections 793(d) and (f) and section 794(a) of the Espionage Act prohibit certain misuses and disclosures of “information relating to the national defense.” To be sure, the designation of particular information as “classified” may give notice to a potential leaker that the information is covered by these criminal provisions—that it is “information relating to the national defense.” But the offenses themselves do not turn on whether the information is classified and, more to the point, they do not require proof of a violation of the nondisclosure rules established by the Executive Order. They could, at least in theory, be violated by disclosure of even nonclassified information “relating to the national defense,” or by someone who is not bound to comply with the Executive Order’s nondisclosure rules.
It is therefore conceivable that a President could violate one of these criminal provisions, even if he does not (and perhaps cannot) violate the terms of his own Executive Order. For example, if a President were to transmit “information relating to the national defense” to an agent of a foreign nation “with intent or reason to believe that it is to be used to the injury of the United States,” such a disclosure would presumptively violate 18 U.S.C. § 794(a).[2]
An extreme hypothetical illustrates the point. Imagine a President who reveals the nuclear codes to a foreign agent because the President has lost a sports bet with that agent. Or because the President seeks to maximize his chances of being employed by the agent’s government after he leaves the Oval Office. If you agree that such conduct could be illegal, then you must agree that presidential disclosures of highly sensitive information to foreign officials are not invariably lawful in all cases.
This is not to suggest that the President might be prosecuted while he holds office, nor that it is clear how the relevant criminal laws (themselves no paragon of clarity) would apply to this case. The longstanding view of the Justice Department’s Office of Legal Counsel is that prosecution of a sitting President would be unconstitutional. And although an indictment might theoretically be possible after the President leaves office, a successful prosecution would be extraordinarily difficult because, among other things, it would be very hard to prove that the President acted with the requisite mens rea, or state of mind. That would seem especially true here if, as McMaster shockingly revealed in passing yesterday, the President “wasn’t even aware of where this information came from; he wasn’t briefed on the sources and methods.”
The unlikelihood of prosecution, however, does not tell us that the President’s conduct was lawful. Most importantly, the President is bound by constitutional obligations beyond what the criminal law proscribes. He must “take care that the laws are faithfully executed.” He must avoid committing any “high crimes and misdemeanors”—a category of delicts famously not confined to defined criminal offenses. He cannot act for reasons that the Constitution specifically prohibits. And his oath requires him to “faithfully execute the Office . . . and . . . to the best of [his] ability, preserve, protect and defend the Constitution of the United States.”
Jack Goldsmith, Susan Hennessey, and coauthors have strongly suggested that last week’s disclosure was a gross violation of President Trump’s oath. If they are right, then we can put the nuances of the Espionage Act to the side. Such infidelity to the Constitution would in itself make the President’s conduct unlawful.
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Why, then, have so many observers so quickly conceded that the President’s actions in this case must have been lawful? One reason, as we have indicated, may be a fixation on the classification system to the neglect of other, “higher” sources of law: statutes that may not be judicially enforceable against the President but are no less law for that, as well as the President’s constitutional duties. Perhaps another reason, in some quarters, is an ambient uneasiness with the criminal laws against leaking themselves (the Espionage Act, as Liza Goitein notes, “gained notoriety” when applied in recent years to disclosures to the media).
We suspect, though, that this case is also illustrative of a common mistake many observers have made about several other of President Trump’s controversial actions: the assumption that a so-called “plenary” power is an unlimited power. Just because the President might have a very broad, almost unlimited constitutional or statutory authority, certain exercises of that authority can still be impermissible, depending on why the President acted as he did.
For instance, even though Congress gave the President a very broad authority to limit entry of persons into the United States when such entry would be detrimental to national interests, it does not follow that Congress has given the President the authority to exclude nationals from specific countries for the purpose of making good on a campaign promise to a constituency animated by anti-Islamic animus.
Likewise, even though the Constitution and statutes afford the President a very broad (so-called “at will”) authority to remove the FBI Director from office, that does not necessarily mean he can fire the Director for the colloquial “good reason, bad reason, or no reason at all.” Some especially bad reasons, at least, may be off-limits. So although it might have been perfectly legal for a President to remove James Comey on account of Comey’s actions in the Clinton investigation, it is another matter for President Trump to remove him in order to thwart an ongoing criminal investigation into the dealings between the President’s close advisers and a foreign power. As one of us wrote ten years ago with respect to the controversial firings of many U.S. Attorneys, yes, the President has a very broad removal authority, but he “could not fire [such prosecutors] because of their religion or race, for instance. And he could not fire them in order to ensure partisan prosecutorial decision-making,” which appeared to be the case in that episode.
Today’s headlines offer another example. The President may have a great deal of leeway to try to influence how the FBI Director expends investigatory resources. Although there is a well-established norm that the President and his aides should not try to influence particular criminal investigations and prosecutions (as Andy Wright explains), in most cases a President’s attempt to do so probably would not be “corrupt” within the meaning of the federal obstruction-of-justice criminal laws.[3] The President can also issue pardons and reprieves preemptively, after a criminal offense has been committed but before the FBI has finished investigating it.
If, however, the President urges the Director to drop an investigation because it is directed at the President’s friends, aides or appointees, that effort to influence the course of the FBI’s functions, backstopped by the implicit (and in this case very real) threat of removal, might be deemed “corrupt” for purposes of the obstruction-of-justice laws—again, whether or not the President would ever be prosecuted. (For more on this question, see Charlie Savage, Michael Dorf, and Ryan Goodman.) More significantly, it might amount to a violation of the President’s oath and his “take care” obligation, and therefore be unlawful whether or not any criminal charges could or would ever be brought.
The same, we believe, is true in the case of President Trump’s disclosure to Lavrov and Kislyak. Perhaps it would be consistent with the President’s oath, as well as the criminal laws on leaking, for him to share such sensitive information in such an unusual setting based upon a sincerely held, even if deeply mistaken, belief that doing so would serve the country’s national security interests. But spontaneously going “off-script” with Russian diplomats in order to “boast” about his “inside knowledge” and the “great intel” he receives—that’s how the Post described the exchange—is decidedly not a legitimate reason for compromising important intelligence sources and diplomatic arrangements.
We cannot be sure exactly what happened in this Oval Office meeting, or why President Trump said what he said. But if it seems plausible that the President was acting not only injudiciously but also without regard for his constitutional role or responsibilities, then it is fair to ask whether he was acting lawfully.
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[1] McMaster presumably would object on the ground that a public disclosure is more reckless than a disclosure made within the White House. But then we would have to ask why information that is potentially catastrophic in the hands of the American public is “wholly appropriate” to be shared “only” with Russian diplomats. As Bob Litt writes: “the President went beyond disclosing information ‘about what the threat was.’ Surely McMaster cannot believe that, even if it is lawful for him to do so, it is ‘appropriate’ for the President to disclose classified information without consulting with the agencies that produced the information, and without even understanding the nature of the information, or for the President to disclose intelligence information obtained from a friendly nation upon promises of confidentiality.”
[2] By contrast, section 793(d) requires proof of disclosure of such information “to any person not entitled to receive it”—and it is probably fair to import into that statute the assumption that the President himself can determine that certain foreign officials are “entitled to receive” the information. Accordingly, it is hard to see how the President might violate that particular provision. Similarly, section 798, which is the rare criminal provision that does require proof that the information was classified, makes it unlawful to knowingly and willfully communicate “to an unauthorized person . . . any classified information” about U.S. codes or communications intelligence activities. If the President deems a particular foreign official to be “authorized” to receive that information, then by definition section 798 becomes inapposite to disclosures of the information to that official.
[3] See 18 U.S.C. § 1505 (“Whoever corruptly . . . influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, . . . Shall be fined under this title, imprisoned not more than 5 years”); 18 U.S.C. § 1512(c)(2) (“Whoever corruptly . . . obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.”).