Wednesday, May 17, 2017

Trump's Latest Blunder Was Legal - And Impeachable

(Caricature of our Blowhard-in-Chief is by DonkeyHotey.)

The Washington Post has reported that when Donald Trump met with the Russian Foreign Minister and Ambassador, he revealed information to them that was highly classified, and so sensitive that it has not even been revealed to our closest allies -- information that could expose a source within ISIS. And BuzzFeed News says that the blunder by Trump may even be worse that was reported in the Washington Post.

Did Trump release the classified information because he is a blowhard and braggart who simply can't control himself? Or was this some sort of payback to the Russians for their help in the 2016 election? At present, we can't really know. And that makes it even more necessary for an independent prosecutor or bipartisan commission be appointed to investigate Trump's ties to Russia, and their involvement in the 2016 election.

Either way, Trump made a grievous error. While that error may be technically legal, it could also be an impeachable offense (by violating his oath of office).

The Lawfare website has written a comprehensive article on this, and I highly recommend you read the whole thing. Below is just a tiny portion of that article:

This is not a question of “leaking classified information” or breaking a criminal law. Let’s dispense with one easy rabbit hole that a lot of people are likely to go down this evening: the President did not “leak” classified information in violation of law. He is allowed to do what he did. If anyone other than the President disclosed codeword intelligence to the Russians in such fashion, he’d likely be facing a long prison term. But Nixon’s infamous comment that “when the president does it, that means that it is not illegal” is actually true about some things. Classified information is one of them. The nature of the system is that the President gets to disclose what he wants.
The reason is that the very purpose of the classification system is to protect information the President, usually through his subordinates, thinks sensitive. So the President determines the system of designating classified information through Executive Order, and he is entitled to depart from it at well. Currently, Executive Order 13526 governs national security information. . . .
This may well be a violation of the President’s oath of office. Questions of criminality aside, we turn to the far more significant issues: If the President gave this information away through carelessness or neglect, he has arguably breached his oath of office. As Quinta and Ben have elaborated on in some detail, in taking the oath President Trump swore to “faithfully execute the Office of President of the United States” and to “preserve, protect and defend the Constitution of the United States” to the best of his ability. It’s very hard to argue that carelessly giving away highly sensitive material to an adversary foreign power constitutes a faithful execution of the office of President.
Violating the oath of office does not require violating a criminal statute. If the President decided to write the nuclear codes on a sticky note on his desk and then took a photo of it and tweeted it, he would not technically have violated any criminal law–just as he hasn’t here. He has the constitutional authority to dictate that the safeguarding of nuclear materials shall be done through sticky notes in plain sight and tweeted, even the authority to declassify the codes outright. Yet, we would all understand this degree of negligence to be a gross violation of his oath of office.
Congress has alleged oath violations—albeit violations tied to criminal allegations or breaches of statutory obligations—all three times it has passed or considered seriously articles of impeachment against presidents: against Andrew Johnson (“unmindful of the high duties of his oath of office”), Richard Nixon (“contrary to his oath”), and Bill Clinton (“in violation of his constitutional oath”). Further, two of the three articles of impeachment against Nixon alleged no direct violation of the law. Instead, they concerned Nixon’s abuse of his power as President, which, like the President putting the nuclear codes on Twitter, is an offense that can only be committed by the President and has thus never been explicitly prohibited in criminal law.
There’s thus no reason why Congress couldn’t consider a grotesque violation of the President’s oath as a standalone basis for impeachment—a high crime and misdemeanor in and of itself. This is particularly plausible in a case like this, where the oath violation involves giving sensitive information to an adversary foreign power. That’s getting relatively close to the “treason” language in the impeachment clauses; it’s pretty easy to imagine a hybrid impeachment article alleging a violation of the oath in service of a hostile foreign power. So legally speaking, the matter could be very grave for Trump even though there is no criminal exposure.
This approach to sensitive information does not appear to be a one-off. President Trump has previously taken heat for his cavalier attitude towards safeguarding classified information, for example when he openly reviewed plans related to a North Korean nuclear test in the Mar-a-Lago dining room in full view of other diners or when he appeared to inadvertently confirm the authenticity of leaked CIA documents on Fox News.

1 comment:

  1. Very true. The constitutional standard for impeachment does not mention illegal.


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