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Don’t Be So Quick to Call Those Disclosures “Legal”

Following multiple reports that President Trump disclosed highly classified information to Russian officials at a private meeting, various legal experts have asserted that Trump broke no laws. An impressively thorough blog post on Lawfare noted that “the very purpose of the classification system is to protect information the President, usually through his subordinates, thinks sensitive. So the President determines the system of designating classified information through Executive Order, and he is entitled to depart from it as well.”

These experts have hastened to add that the lawfulness of the president’s action should not give us great comfort. It may be legal, they argue, for the president to share with officials of a hostile foreign nation closely guarded intelligence that was furnished by an ally (reportedly Israel), but it still shows a frighteningly cavalier attitude toward our nation’s security. The source of that intelligence may be in jeopardy, and our intelligence-sharing relationships with other countries could suffer.

These non-legal points may well be the more important ones. But because the conservative defense of Trump’s action has been rooted almost exclusively in its supposed lawfulness (that is, once the White House gave up its specious denial of the news reports), it is worth asking whether some experts are conceding the legal ground too readily. I think they are. 

Most commentary has focused on the executive order governing classification (EO 13526), which establishes the criteria for classifying information, the limits on disclosure, and the procedures for declassification. Although the president is not explicitly exempted from any of the order’s rules, the order itself represents a limited delegation of his own constitutional authority to control access to national security information.  As such, his failure to follow its terms might undermine the order’s effectiveness, but it is arguably his prerogative.

To be sure, it would be preferable for the executive order to state this prerogative explicitly, in order to avoid public confusion over the state of the law. More generally, the notion that a president may lawfully depart from the plain terms of an executive order, and may do so in secret—a position that OLC notoriously advanced under President George W. Bush—creates a disturbing dynamic in which the law on the books is not truly the law in effect. But that is a subject for another post (or perhaps a report). For current purposes, suffice it to say that the president is probably not bound by the constraints of Executive Order 13526.   

Note, however, that this is not a case of the president exercising his authority to “declassify” information through the act of disclosing it—as many commentators have suggested. It is doubtful, to say the least, that the president now considers this information unclassified, such that anyone could obtain it by filing a FOIA request. President Trump did not intend to strip the information of all the protections that classification entails; he simply intended to let some additional people in on the secret. And it is evident that the information is still considered highly sensitive, with administration officials pressing reporters not to make any further details public.

Accordingly, the relevant legal question is not whether the president may declassify information without following the rules set forth in the executive order, but whether the president may disclose sensitive national security information to anyone he wishes. When framed this way, it becomes clear that the executive order governing classification is not the only law that must be considered. Congress has passed several statutes regarding the disclosure of sensitive information. And whatever freedom the president may have to depart from the terms of an executive order, he is not so unencumbered when it comes to statutes.

The most relevant statute in this instance may be the Espionage Act. This law gained notoriety when it became President Obama’s weapon of choice against national security whistleblowers and others who leaked classified information to the media. Critics (including myself) questioned whether the Act was appropriately used to punish disclosures to the media meant to inform the American public, rather than disclosures to foreign powers meant to harm the U.S. or aid another nation.  Its use in the former context stretched statutory intent and raised constitutional concerns.

But the core of the Act is its prohibition against actual spying. As stated in18 USC § 793(d):

Whoever, lawfully having possession of, access to, control over, or being entrusted with . . . information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates . . . the same to any person not entitled to receive it . . . [s]hall be fined under this title or imprisoned not more than ten years, or both.

If the information Trump disclosed was as sensitive as it has been portrayed in news reports (a big “if,” to be sure, and one that cannot currently be evaluated with publicly available information), then the above language—which does not turn on whether the information was classified or handled in accordance with the executive order—would certainly seem to describe President Trump’s conduct.

The president’s lawyers would no doubt argue that Russian Foreign Minister Sergei Lavrov and Ambassador Sergey Kislyak were “entitled to receive” the information simply by virtue of the president choosing to tell them. Alternatively, they might argue that the statute cannot constitutionally be applied against the president. In either case, the crux of their argument would be that the president has sole authority, which Congress cannot constrain, to control information relating to the national security.

But the Supreme Court has never gone so far. It has acknowledged that the president’s “authority to classify and to control access to information bearing on national security . . . flows primarily from [the Commander-in-Chief clause] and exists quite apart from any explicit congressional grant.” In other words, the president does not need permission from Congress to issue rules for classification; he can act in this area without express legislative authorization. It does not follow, however, that the president can act against explicit legislative prohibitions.  These are very different situations, as Justice Jackson explained in his famous concurrence in Youngstown Sheet & Tube Co. v. Sawyer.

When the president acts contrary to a statute, “his power is at its lowest ebb, for he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter” (my emphasis). The act may be sustained only by “disabling the Congress from acting upon the subject.” If, on the other hand, Congress is also constitutionally empowered in the relevant area, it can legislate in a manner that constrains the president’s own authority. This is not a rare phenomenon, as many powers are shared between the executive and legislative branches to facilitate checks and balances.

None of the relevant cases has held that Congress lacks any authority in the area of national security information. To the contrary: after acknowledging that the lion’s share of authority rests with the president, Justices Stewart and White, in their concurrence in New York Times Co. v. United States, were careful to add the following caveat: “This is not to say that Congress and the courts have no role to play. Undoubtedly Congress has the power to enact specific and appropriate criminal laws to protect government property and preserve government secrets.” And indeed, Congress has enacted several laws in this area—including the Espionage Act, the National Security Act, the Atomic Energy Act, and others—which have been in place, and which the executive branch has largely followed, for decades.

I’m not arguing that President Trump’s disclosure violated the Espionage Act, or that the Act could constitutionally be applied to the president. These are difficult questions, to say the least. But I do think it’s a mistake to assume the lawfulness of the president’s disclosures on the ground that the president has unfettered—and unfetterable—authority when it comes to the disclosure of national security information. Among other things, such a view would mean that a sitting president could lawfully conduct actual espionage (and therefore could not be impeached for doing so), as the act of spying is the act of communicating national security information. We should be in no hurry to embrace such a self-defeating interpretation of the Constitution.

Image: Shaleah Craighead/The White House

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About the Author

co-directs the Brennan Center for Justice’s Liberty and National Security Program. Before joining the Brennan Center, Ms. Goitein served as counsel to Sen. Russ Feingold and as a trial attorney in the Federal Programs Branch of the Civil Division of the Department of Justice. You can follow her on Twitter (@LizaGoitein).