Is It Legal For Trump To Share Classified Intelligence?

WASHINGTON – The nation's capital is engulfed in a debate about President Trump's reported decision to leak highly classified information to top Russian diplomats – but legal analysts and secrecy experts said Monday that American presidents have broad authority to disclose classified information, making them virtually immune from prosecution.

Every other government employee with a clearance could face criminal charges for disclosing classified information without prior permission. But the commander in chief has the power to unilaterally disclose any material – even the most secret intelligence – without going through any kind of formal process.

Still, Trump's decision to share such sensitive information last week in a White House meeting with Russian Foreign Minister Sergei Lavrov and Ambassador Sergey Kislyak – first reported by the Washington Post – has potentially serious consequences.

Perhaps most serious, said Mark Zaid, an attorney specializing in national security matters, is the prospect that allies would lose their trust in Washington's ability to keep secrets and no longer share valuable intelligence with their American counterparts.

"If we get to the point where our closest allies refuse share this information, that would be the worst outcome imaginable,'' Zaid said.

Trump, according to the the Post report, disclosed highly classified information about a plot involving the Islamic State during a White House discussion with Russian Foreign Minister Sergey Lavrov and Russian ambassador Sergey Kislyak. Making matters more complex, the ambassador's past contacts with with Trump campaign and administration officials are the subject of a separate ongoing FBI investigation into possible collusion between Trump associates and Russian officials.

The information shared with the Russians had been provided by a U.S. partner under terms of an intelligence-sharing agreement, according to the report. The identity of the country that provided the information was not disclosed in the Post report.

"The president has the power to declassify our intelligence,'' said Michael McFaul, the former U.S. ambassador to Russia. "He does not have the authority to declassify unilaterally intelligence provided to us by other countries.''

While violations of intelligence sharing agreements are not crimes, they are subject to sanctions from individual countries, including the complete nullification of the information sharing agreements, Zaid said. As a result, the U.S. could be blocked from a range of critical information, from intelligence about terrorists plots to the whereabouts of cyber criminals.

And Trump himself could face some personal consequences.

The disclosures, said Steven Aftergood, director of the Federation of American Scientists Project on Government Secrecy, "could have profound ramifications.''

Congress may have the authority to levy the ultimate personal sanction, Aftergood said. Lawmakers could pursue impeachment, should they determine the president's actions to be reckless. "His conduct is not a question for the Justice Department; it's a question for Congress," he said.

The standards of how the government handles such matters has differed dramatically with changing administration, according to a 2013 analysis by the Congressional Research Service.

"The rules governing how best to protect the nation’s secrets, while still insuring that the American public has access to information on the operations of its government, past and present, have shifted along with the political changes in Washington,'' the CRS report stated. "Over the last fifty years, with the exception of the Kennedy Administration, a new executive order on classification was issued each time one of the political parties regained control of the Executive Branch. These have often been at variance with one another ... at times even reversing outright the policies of the previous order.''

Yet few actions by an administration have generated such a strong reaction than that following the disclosure about Trump's meeting this week with the Russians.

"If true,'' tweeted Sen. Mark Warner, the ranking Democrat on the Senate Intelligence Committee, "this is a slap in the face to the intel community. Risking sources & methods is inexcusable, particularly with the Russians.''

Copyright 2017 USA TODAY


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