President Trump, calling it a leak doesn’t make it a crime

In response to former FBI Director James Comey’s powerful testimony Thursday detailing President Trump’s efforts to squelch the bureau’s investigation into Michael Flynn, Trump is embracing a tried-and-true Washington tactic: divert attention from a scandal by smearing the messenger. He and his lawyers are accusing Comey of unlawfully “leaking” the memos Comey kept of his conversations with the president.

Lawmakers and the American public should not be fooled.

{mosads}The word “leak” has turned into something of a dog whistle of late. White House spokespersons use it to describe any public disclosure of government information by anonymous sources that reflects poorly on the administration. The term implies that the disclosure was illegal, perhaps even traitorous.

But here’s the thing: not every disclosure of government information to the press is a violation of the law. In fact, very few disclosures constitute crimes.

The primary exception is classified information. In almost every case, the unauthorized disclosure of classified information is a criminal offense, regardless of whether the disclosure serves the public interest or whether any harm results. The Obama administration upped the ante by using the Espionage Act — a law designed to punish spies and traitors — to prosecute leaks of classified information to the press. Several other, less draconian laws also criminalize such activity.

Comey openly acknowledged that he asked a friend to pass his memos along to reporters. Those memos, however, were not classified. He could not have classified them even if he wanted to. That would have violated the executive order governing classification, which requires all classified information to fall within certain subject areas and which prohibits classification to conceal official misconduct.

For unclassified information, agencies have internal rules and policies governing disclosures outside the agency. If an employee violates them, he may be subject to administrative penalties, including being fired. But he has not broken any criminal law. Moreover, once the employee leaves the agency, he is generally no longer subject to the agency’s directives (although some employees sign contracts agreeing to refrain from certain activities or disclosures for a period after leaving the agency).

Trump’s lawyers are trying to imply unlawfulness by describing the memos as “privileged.” This is meritless for several reasons. Most fundamentally, there is no privilege that would cover the contents of Comey’s memos. The closest fit is the “presidential communications privilege,” which applies to certain conversations between the president and his advisors. But the purpose of the privilege is to protect the president’s decision-making process in the exercise of his core constitutional functions. It applies only to conversations about such decisions — not demands of loyalty or thinly veiled orders to drop investigations.

Even if the privilege did apply, there is no law that prohibits — let alone criminalizes — the disclosure of presidential communications. The privilege provides current executive branch employees with a legal basis to resist congressional or judicial demands for information (although if Congress or the courts can show a specific need for the information, the privilege must yield). It does not prohibit government employees from making voluntary disclosures.

Of course, internal agency policies restricting disclosures might well encompass disclosures of presidential communications. But again, these policies generally do not apply to people who no longer work for the agency and violating them would not be a crime.  

It’s puzzling that Comey chose to release his memo through an intermediary and did not immediately identify himself as the source. It’s less puzzling that he was reluctant to directly confront the president over his misconduct, but reasonable minds can disagree over whether he should have done more to push back. People can also reasonably debate whether he should have reported the matter to Attorney General Jeff Sessions, despite Sessions’ imminent recusal, rather than just consulting with FBI senior leadership.

But Comey’s behavior is not the issue here. At worst, he should be fired, and that has already happened. He is no longer a government official; in his own words, he is “between opportunities.”

Trump, on the other hand, is still the president. And it’s increasingly clear that this president believes he is above the law. Trump’s statements to Comey were a blatant attempt to derail the Flynn investigation, notwithstanding his decidedly non-literal use of the word “hope.” He also reportedly attempted to rope Director of National Intelligence Dan Coats and CIA Director Mike Pompeo into the effort.

Most important, even though Comey acknowledged that Trump was not personally under investigation as of May 9, the FBI continues to investigate whether his campaign colluded with Russia to interfere in the 2016 election. And the president continues to show remarkably little concern about the interference itself. Even after belatedly and grudgingly conceding that Russia tried to meddle in the election (although he quickly added that “it could have been others also”), he tweeted that “Russia talk” was “fake news” put out by Democrats to mask their electoral defeat. 

Congress must keep its eye on the ball and demand answers regarding the nature and extent of the ties between Trump associates and Russian interests. Regardless of whether the Trump campaign colluded with Russia during the 2016 election, will an administration so tightly connected to Russia do what is necessary to prevent interference in the next one? When the president tries to roll back sanctions on Russia, discloses to Russian officials classified information that was provided to us by a close ally and calls NATO “obsolete,” is he acting in America’s interests, or those of a hostile foreign power?

There are no questions more important to the security of our democracy. We cannot afford to fall for a distraction ploy when the stakes are so high.

Elizabeth Goitein is co-director of the Liberty & National Security Program at the Brennan Center for Justice at NYU School of Law. Follow her on Twitter @LizaGoitein. 

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