SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2017, Issue No. 37
May 18, 2017

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

LEGALITY OF THE TRUMP DISCLOSURES, REVISITED

When President Trump disclosed classified intelligence information to Russian officials last week, did he commit a crime?

Considering that the President is the author of the national security classification system, and that he is empowered to determine who gets access to classified information, it seems obvious that the answer is No. His action might have been reckless, I opined previously, but it was not a crime.

Yet there is more to it than that.

The Congressional Research Service considered the question and concluded as follows in a report issued yesterday:

"It appears more likely than not that the President is presumed to have the authority to disclose classified information to foreign agents in keeping with his power and responsibility to advance U.S. national security interests." See Presidential Authority to Permit Access to National Security Information, CRS Legal Sidebar, May 17, 2017:

This tentative, rather strained formulation by CRS legislative attorneys indicates that the question is not entirely settled, and that the answer is not necessarily obvious or categorical.

And the phrase "in keeping with his power and responsibility to advance U.S. national security interests" adds an important qualification. If the president were acting on some other agenda than the U.S. national interest, then the legitimacy of his disclosure could evaporate. If the president were on Putin's payroll, as the House majority leader lamely joked last year, and had engaged in espionage, he would not be beyond the reach of the law.

Outlandish hypotheticals aside, it still seems fairly clear that the Trump disclosures last week are not a matter for the criminal justice system, though they may reverberate through public opinion and congressional deliberations in a consequential way.

But several legal experts this week insisted that it's more complicated, and that it remains conceivable that Trump broke the law. See:

"Don't Be So Quick to Call Those Disclosures 'Legal'" by Elizabeth Goitein, Just Security, May 17, 2017:

"Why Trump's Disclosure to Russia (and Urging Comey to Drop the Flynn Investigation, and Various Other Actions) Could Be Unlawful" by Marty Lederman and David Pozen, Just Security, May 17, 2017:

"Trump's disclosures to the Russians might actually have been illegal" by Steve Vladeck, Washington Post, May 16, 2017:

OBSTRUCTION OF JUSTICE, & MORE FROM CRS

A 2014 report on obstruction of justice prepared by the Congressional Research Service was highlighted on the CRS congressional intranet this week, apparently in response to news stories and congressional interest in the topic. See Obstruction of Justice: an Overview of Some of the Federal Statutes that Prohibit Interference with Judicial, Executive, or Legislative Activities, April 17, 2014:

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

Israel: Background and U.S. Relations In Brief, updated May 17, 2017:

Armed Conflict in Syria: Overview and U.S. Response, updated May 16, 2017:

Kuwait: Governance, Security, and U.S. Policy, updated May 15, 2017:

Softwood Lumber Imports From Canada: Current Issues, May 17, 2017:

Air Traffic Inc.: Considerations Regarding the Corporatization of Air Traffic Control, updated May 16, 2017:

The Electoral College: How It Works in Contemporary Presidential Elections, updated May 15, 2017:

The Regional Greenhouse Gas Initiative: Lessons Learned and Issues for Congress, updated May 16, 2017:

Navy Littoral Combat Ship (LCS)/Frigate Program: Background and Issues for Congress, updated May 12, 2017:

Navy Aegis Ballistic Missile Defense (BMD) Program: Background and Issues for Congress, updated May 12, 2017:

Navy Lasers, Railgun, and Hypervelocity Projectile: Background and Issues for Congress, updated May 12, 2017:

Navy Force Structure and Shipbuilding Plans: Background and Issues for Congress, updated May 15, 2017:

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

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