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Trump’s Disclosure Did Not Break the Law

Since the Washington Post revealed that President Trump had provided “classified” information to Russian diplomats, there have been three rounds of reactions.

The first comments suggested that the President had broken the law. Then others quickly pointed out that no law had been broken. In response, Just Security published two posts (here and here) suggesting that perhaps the law had been violated. I am writing to respond to those posts.

Certainly, if President Trump is a conscious agent of the Russian government and provided the information as part of an on-going conspiracy, he could be impeached and perhaps then indicted, and this act could be used as evidence of this conspiracy. Even short of that, the act might be viewed as so reckless as to constitute grounds for impeachment regardless of the president’s motives.

But there is no basis for suggesting that the act by itself was illegal.

First, the executive order (EO) on classification simply has no relevance to whether the president violated the criminal law. The president did not make the information public. The EO does not purport to deal with decisions by senior government officials to provide information in confidence to other governments. It does not provide criteria for such decisions and no government official thinks it governs such decisions that are made daily.

Moreover, it is not a crime to transfer information in violation of the provisions of the EO. Of course, in every administration, officials claim that it is a crime. But it simply is not. There is no such statute. Period.

Even if one believed that the EO somehow applied, the president did not violate it. The EO describes categories of information that “may”—not “must”—be classified. It includes a provision allowing a senior official–including the president—to declassify information in the public interest. Now, officials of one agency choosing to declassify information from another agency must to defer to the agency that produced the information. But the president has no such limitation.

In our effort to show that the president committed a crime, we should not turn the EO into a mechanism that limits the right of senior officials to make information public or to provide it to other governments.

In fact, as I said, senior U.S. government officials in conversations with foreign officials decide on a daily basis to provide them with information that is properly classified and that will remain classified.

U.S. government officials normally provide classified information more often to friendly governments, but not exclusively. For example, in arms control negotiations starting in 1969 and in subsequent verification conversations with Russia, the United States regularly shares classified information with the Russian government.

With one exception, which I will discuss in a moment, Congress has not sought to limit such transfers or to make them illegal under the criminal law.

The government and some commentators cite 18USC793 and 794, the “Espionage” statutes, as criminalizing the transfer of “classified information.”  These statutes cover “information related to the national defense” and not classified information.  They are espionage statutes that relate to unauthorized transfers to persons not entitled to receive the information.  No one has ever suggested that the President’s conduct was covered by this statute.

In the absence of such a statute barring Trump from passing information to Russia or any foreign government, there is no basis for arguing that the transfer—on its own—was an illegal act.

Congress has the constitutional right to enact such a statute and make it binding on all executive branch officials including the president. In fact, Congress has done so for one category of information and the executive branch has accepted it as binding, including on the president.

The Atomic Energy Act of 1954 designated certain information related to the process of making atomic weapons as “born classified” and provides that it may not be made public or be transferred to any foreign government except according to procedures and criteria laid out in the law.

Congress could enact a similar statute covering sensitive information received in confidence from a foreign government. But it has not done so. In this situation, we should not let our desire to confront President Trump lead us to espouse positions that violate his rights and that would constrain future presidents in inappropriate ways.

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About the Author

Senior Advisor to the Open Society Foundations