SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2017, Issue No. 36
May 16, 2017

Secrecy News Blog: https://fas.org/blogs/secrecy/

AN AUTHORIZED DISCLOSURE OF CLASSIFIED INFORMATION

President Trump's disclosure of classified intelligence information to Russian officials, reported by the Washington Post, may have been reckless, damaging and irresponsible. But it was not a crime.

Disclosures of classified information are not categorically prohibited by law. Even intelligence sources and methods are only required to be protected under the National Security Act from "unauthorized disclosure." This leaves open the possibility that disclosures of such classified information can actually be authorized. And we know that they are, from time to time.

One statute in particular -- 18 USC 798 -- does come close to matching the circumstances of the Trump disclosure to Russia, with a crucial exception.

That statute makes it a felony to disclose to an unauthorized person any classified information "concerning the communication intelligence activities of the United States or any foreign government; or [...] obtained by the processes of communication intelligence from the communications of any foreign government."

But it further explains that an "unauthorized person" is one who has not been "authorized to receive information... by the President."

This morning, President Trump tweeted that "As President I wanted to share with Russia (at an openly scheduled W.H. meeting) which I have the absolute right to do, facts pertaining to terrorism and airline flight safety. Humanitarian reasons, plus I want Russia to greatly step up their fight against ISIS & terrorism."

(Was the parenthetical phrase "at an openly scheduled W.H. meeting" intended to rule out a clandestine transfer of classified information to the Russians?)

All of that is to say that this episode, though it may have far-reaching ramifications for national security, is probably not a matter for law enforcement. (Based on the reporting by the Washington Post, the President's actions did violate the terms of an intelligence sharing agreement with a foreign government that supplied the information. But that agreement would not be enforced by the criminal justice system.)

Instead, this is something to be weighed by Congress, which has the responsibility to determine whether Donald J. Trump is fit to remain in office.

SPECIAL COUNSELS, FBI DIRECTOR REMOVAL, & MORE FROM CRS

In order to appoint a special counsel to investigate potential criminal activity in the executive branch, the Congressional Research Service explained last week, the Attorney General (or his deputy) "must determine that a criminal investigation is warranted; that the normal process of investigation or prosecution would present a conflict of interest for DOJ or other extraordinary circumstances exist; and that public interest requires a special counsel to assume those responsibilities."

See Special Counsels, Independent Counsels, and Special Prosecutors: Investigations of the Executive Branch by the Executive Branch, CRS Legal Sidebar, May 11, 2017:

Other new and updated reports from the Congressional Research Service include the following.

The Removal of FBI Director James Comey: Presidential Authority and the Senate's Role in the Appointment of the FBI Director, CRS Legal Sidebar, May 10, 2017:

FBI Director: Appointment and Tenure, May 10, 2017:

Congress's Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure, updated May 12, 2017:

Cybersecurity: Legislation, Hearings, and Executive Branch Documents, updated May 12, 2017:

The Growing Gap in Life Expectancy by Income: Recent Evidence and Implications for the Social Security Retirement Age, May 12, 2017:

Navy Ford (CVN-78) Class Aircraft Carrier Program: Background and Issues for Congress, updated May 12, 2017:

Navy Virginia (SSN-774) Class Attack Submarine Procurement: Background and Issues for Congress, updated May 12, 2017:

Navy DDG-51 and DDG-1000 Destroyer Programs: Background and Issues for Congress, updated May 12, 2017:

Energy and Water Development: FY2017 Appropriations for Nuclear Weapons Activities, updated May 10, 2017:

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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