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The Flagrant Foul in Trump’s Disclosure of Classified Info to Russia: The Missing Interagency Process

 

It was a far more effective strategy for the White House not to deny the facts of the Washington Post report that the president had disclosed information to Russia, but instead to claim that his decision to do so was purposeful and appropriate. Indeed, like it or not, once the president has decided not to view Russia as an adversary, but to embrace Moscow as a potential partner and invite its officials into the Oval Office, the sharing of information is likely to follow.

That said, why intelligence as sensitive as this? Why so gravely compromise the vital relationship with the foreign ally who gave us the intelligence? What was the cost-benefit analysis? What were the equities for our intelligence agencies in revealing this information?

In my mind, the most vital question of all: Is it not the height of recklessness for the president to make those calls on his own without the information and advice he would receive from the interagency process?

Indeed, in his press conference on Tuesday morning, National Security Adviser H.R. McMaster admitted that the president made the decision to disclose the information during his conversation with the Russians, not before the meeting took place. McMaster claimed this was “consistent with the routine sharing of information between the president and any leader with whom he’s engaged.”

But the president’s action was not consistent with such routine practices. And it does not suffice for the administration to say that the president has the prerogative to disclose or declassify information.

A former National Security Council official emailed me about his concerns with the highly aberrational actions of the president. With his permission, I am reproducing what he wrote:

“The if-the-President-says-it-publicly-then-it’s-cool argument breezily skates over a large body of precedent for how declassification is properly done.  Declassification of even decades-old records (such as those related to Argentina’s “Dirty War”) or heavily sanitized information (such as aggregated figures on civilian deaths from drone strikes) wends its way through a painful but critical policy process that allows the intelligence community, Pentagon, State Department, Department of Justice, and other relevant agencies to weigh, among other things, potential risks to intelligence sources and methods, risks to intelligence-sharing relationships, and heightened litigation risk of further, unwelcome, court-ordered disclosures based, for example, on the Freedom of Information Act.”  

“The one thing the White House has right with its declassification narrative is that sharing sensitive information with the Russians is tantamount to full-blown declassification. There is zero basis for trust that the Russians would not publicly disclose sensitive information or otherwise seek to compromise our – or our partners’ – sources and methods, let alone our intelligence-sharing relationships.”     

Notably, McMaster hedged when he said that he and other senior officials in the room at the time thought that the president’s actions were “appropriate.”  If you study his words,  what McMaster seemed to be saying was that he and the others thought it was appropriate for the president to make that call–not that they all thought it was the right or appropriate call to make. And was it the right call? The president should have asked them first.

 

Photo: President Donald Trump with Russian Foreign Minister Sergey Lavrov in the Oval Office, May 10, 2017 – Official White House Photo by Shealah Craighead

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About the Author

is co-editor-in-chief of Just Security. Ryan is the Anne and Joel Ehrenkranz Professor of Law at New York University School of Law. He served as Special Counsel to the General Counsel of the Department of Defense (2015-16). You can follow him on Twitter (@rgoodlaw).