Donald Trump: High Crimes and Misdemeanors?
May 17, 2017
Greg Miller and Greg Jaffe / The Washington Post & Dahlia Lithwick / Slate & Juan Cole / Informed Comment
Commentaries: Since the news broke on Tuesday that Donald Trump had fired FBI Director James Comey, Harvard Law School's Laurence Tribe has been arguing that the president's conduct, in and of itself, is illegal and amounts to impeachable "high crimes and misdemeanors." And Juan Cole comments: "Trump is not fit to be president, as a matter of temperament. But his temperament was on full display before the American public and they voted for him anyway, so those voters deserve him."
Trump Revealed Highly Classified Information
To Russian Foreign Minister and Ambassador
Greg Miller and Greg Jaffe / The Washington Post
(May 16, 2017) -- President Trump revealed highly classified information to the Russian foreign minister and ambassador in a White House meeting last week, according to current and former US officials, who said Trump's disclosures jeopardized a critical source of intelligence on the Islamic State.
The information the president relayed had been provided by a US partner through an intelligence-sharing arrangement considered so sensitive that details have been withheld from allies and tightly restricted even within the US government, officials said.
The partner had not given the United States permission to share the material with Russia, and officials said Trump's decision to do so endangers cooperation from an ally that has access to the inner workings of the Islamic State. After Trump's meeting, senior White House officials took steps to contain the damage, placing calls to the CIA and the National Security Agency.
"This is code-word information," said a US official familiar with the matter, using terminology that refers to one of the highest classification levels used by American spy agencies. Trump "revealed more information to the Russian ambassador than we have shared with our own allies."
The revelation comes as the president faces rising legal and political pressure on multiple Russia-related fronts. Last week, he fired FBI Director James B. Comey in the midst of a bureau investigation into possible links between the Trump campaign and Moscow. Trump's subsequent admission that his decision was driven by "this Russia thing" was seen by critics as attempted obstruction of justice.
One day after dismissing Comey, Trump welcomed Russian Foreign Minister Sergei Lavrov and Ambassador Sergey Kislyak -- a key figure in earlier Russia controversies -- into the Oval Office. It was during that meeting, officials said, that Trump went off script and began describing details of an Islamic State terrorist threat related to the use of laptop computers on aircraft.
For almost anyone in government, discussing such matters with an adversary would be illegal. As president, Trump has broad authority to declassify government secrets, making it unlikely that his disclosures broke the law.
White House officials involved in the meeting said Trump discussed only shared concerns about terrorism.
"The president and the foreign minister reviewed common threats from terrorist organizations to include threats to aviation," said H.R. McMaster, the national security adviser, who participated in the meeting. "At no time were any intelligence sources or methods discussed, and no military operations were disclosed that were not already known publicly."
McMaster reiterated his statement in a subsequent appearance at the White House on Monday and described the Washington Post story as "false," but did not take any questions.
In their statements, White House officials emphasized that Trump had not discussed specific intelligence sources and methods, rather than addressing whether he had disclosed information drawn from sensitive sources.
The CIA declined to comment, and the NSA did not respond to requests for comment.
But officials expressed concern about Trump's handling of sensitive information as well as his grasp of the potential consequences. Exposure of an intelligence stream that has provided critical insight into the Islamic State, they said, could hinder the United States' and its allies' ability to detect future threats.
"It is all kind of shocking," said a former senior US official who is close to current administration officials. "Trump seems to be very reckless and doesn't grasp the gravity of the things he's dealing with, especially when it comes to intelligence and national security. And it's all clouded because of this problem he has with Russia."
In his meeting with Lavrov, Trump seemed to be boasting about his inside knowledge of the looming threat. "I get great intel. I have people brief me on great intel every day," the president said, according to an official with knowledge of the exchange.
Trump went on to discuss aspects of the threat that the United States learned only through the espionage capabilities of a key partner. He did not reveal the specific intelligence-gathering method, but he described how the Islamic State was pursuing elements of a specific plot and how much harm such an attack could cause under varying circumstances.
Most alarmingly, officials said, Trump revealed the city in the Islamic State's territory where the US intelligence partner detected the threat.
The Post is withholding most plot details, including the name of the city, at the urging of officials who warned that revealing them would jeopardize important intelligence capabilities.
"Everyone knows this stream is very sensitive, and the idea of sharing it at this level of granularity with the Russians is troubling," said a former senior US counterterrorism official who also worked closely with members of the Trump national security team. He and others spoke on the condition of anonymity, citing the sensitivity of the subject.
The identification of the location was seen as particularly problematic, officials said, because Russia could use that detail to help identify the US ally or intelligence capability involved. Officials said the capability could be useful for other purposes, possibly providing intelligence on Russia's presence in Syria. Moscow would be keenly interested in identifying that source and perhaps disrupting it.
Russia and the United States both regard the Islamic State as an enemy and share limited information about terrorist threats. But the two nations have competing agendas in Syria, where Moscow has deployed military assets and personnel to support President Bashar al-Assad.
"Russia could identify our sources or techniques," the senior US official said.
A former intelligence official who handled high-level intelligence on Russia said that given the clues Trump provided, "I don't think that it would be that hard [for Russian spy services] to figure this out."
At a more fundamental level, the information wasn't the United States' to provide to others. Under the rules of espionage, governments -- and even individual agencies -- are given significant control over whether and how the information they gather is disseminated, even after it has been shared. Violating that practice undercuts trust considered essential to sharing secrets.
The officials declined to identify the ally but said it has previously voiced frustration with Washington's inability to safeguard sensitive information related to Iraq and Syria.
"If that partner learned we'd given this to Russia without their knowledge or asking first, that is a blow to that relationship," the US official said.
Trump also described measures the United States has taken or is contemplating to counter the threat, including military operations in Iraq and Syria, as well as other steps to tighten security, officials said.
The officials would not discuss details of those measures, but the Department of Homeland Security recently disclosed that it is considering banning laptops and other large electronic devices from carry-on bags on flights between Europe and the United States. The United States and Britain imposed a similar ban in March affecting travelers passing through airports in 10 Muslim-majority countries.
Trump cast the countermeasures in wistful terms. "Can you believe the world we live in today?" he said, according to one official. "Isn't it crazy?"
Lavrov and Kislyak were also accompanied by aides.
A Russian photographer took photos of part of the session that were released by the Russian state-owned Tass news agency. No US news organization was allowed to attend any part of the meeting.
Senior White House officials appeared to recognize quickly that Trump had overstepped and moved to contain the potential fallout. Thomas P. Bossert, assistant to the president for homeland security and counterterrorism, placed calls to the directors of the CIA and the NSA, the services most directly involved in the intelligence-sharing arrangement with the partner.
One of Bossert's subordinates also called for the problematic portion of Trump's discussion to be stricken from internal memos and for the full transcript to be limited to a small circle of recipients, efforts to prevent sensitive details from being disseminated further or leaked.
White House officials defended Trump. "This story is false," said Dina Powell, deputy national security adviser for strategy. "The president only discussed the common threats that both countries faced."
But officials could not explain why staff members nevertheless felt it necessary to alert the CIA and the NSA.
Sen. Bob Corker (R-Tenn.) said he would rather comment on the revelations in the Post story after "I know a little bit more about it," but added: "Obviously, they are in a downward spiral right now and have got to figure out a way to come to grips with all that's happening. And the shame of it is, there's a really good national security team in place."
Corker also said, "The chaos that is being created by the lack of discipline is creating an environment that I think makes -- it creates a worrisome environment."
Trump has repeatedly gone off-script in his dealings with high-ranking foreign officials, most notably in his contentious introductory conversation with the Australian prime ministerearlier this year. He has also faced criticism for seemingly lax attention to security at his Florida retreat, Mar-a-Lago, where he appeared to field preliminary reports of a North Korea missile launch in full view of casual diners.
US officials said that the National Security Council continues to prepare multi-page briefings for Trump to guide him through conversations with foreign leaders, but that he has insisted that the guidance be distilled to a single page of bullet points -- and often ignores those.
"He seems to get in the room or on the phone and just goes with it, and that has big downsides," the second former official said. "Does he understand what's classified and what's not? That's what worries me."
Lavrov's reaction to the Trump disclosures was muted, officials said, calling for the United States to work more closely with Moscow on fighting terrorism.
Kislyak has figured prominently in damaging stories about the Trump administration's ties to Russia. Trump's first national security adviser, Michael Flynn, was forced to resign just 24 days into the job over his contacts with Kislyak and his misleading statements about them.
Attorney General Jeff Sessions was forced to recuse himself from matters related to the FBI's Russia investigation after it was revealed that he had met and spoke with Kislyak, despite denying any contact with Russian officials during his confirmation hearing.
"I'm sure Kislyak was able to fire off a good cable back to the Kremlin with all the details" he gleaned from Trump, said the former US official who handled intelligence on Russia.
The White House readout of the meeting with Lavrov and Kislyak made no mention of the discussion of a terrorist threat.
"Trump emphasized the need to work together to end the conflict in Syria," the summary said. The president also "raised Ukraine" and "emphasized his desire to build a better relationship between the United States and Russia."
How the President Obstructed Justice
Why legal scholar Laurence Tribe believes Trump
committed impeachable offenses in his firing of James Comey
Dahlia Lithwick / Slate
(May 16, 2017) -- Since the news broke on Tuesday that Donald Trump had fired FBI Director James Comey, Harvard Law School's Laurence Tribe has been arguing that the president's conduct, in and of itself, is illegal and amounts to impeachable "high crimes and misdemeanors."
Tribe has been acting as citizen attorney general in the "shadow Cabinet" formed by progressive leaders in response to the Trump Administration and tweeting from the @ShadowingTrump handle. Tribe's tweets (from @tribelaw) have become their own form of must-see TV for the resistance. I reached him via email this morning, with a clutch of lingering questions we at Slate have had about the past week.
Dahlia Lithwick: Talk a bit about the recusal rules and the attorney general. I've been trying to figure out all week what the consequences are if Jeff Sessions promises to recuse on the Russia investigation, then fires the person leading the investigation. These rules have no real enforcement mechanism if they are violated, right?
Laurence Tribe: Because Sessions has already lied under oath to Congress, this little song and dance of recusal/nonrecusal seems to me part of a pattern of obstruction of justice in its own right. Nobody can bring a civil or criminal action against Sessions for trying to have it both ways, but he needs to be held accountable to the people and the law in some way. And the only way I can see, whatever its political prospects, would appear to be impeachment.
In addition, President Trump's sneaky decision to rope Sessions into the charade by which he initially offered a transparently phony explanation both to the FBI director and to the American people of why he was canning Comey seems to me part of Trump's own pattern of obstruction, which I've argued is an impeachable offense by the president.
You're started using the term obstruction of justice with regard to the president, and that's got a very precise legal meaning. At what point does Trump's conduct last week rise to the level of illegal obstruction?
In my view, we have clearly passed that point, both as a technical matter under 18 USC 1505, 1512, and 1513, and, much more importantly, as a matter of what might be called the "common law" of presidential impeachment, as established principally by the House impeachment and Senate trial of Bill Clinton and by the articles of impeachment of Richard Nixon.
What is the legal/ethical significance of Donald Trump's Friday tweet threatening Jim Comey about taping his calls? Clearly, it was bad optics. But was it also more?
That's a clear instance of witness intimidation under 18 USC 1512-13 and obstruction of pending congressional proceedings under 18 USC 1505, given the obvious likelihood that Comey's testimony about who convened the infamous White House dinner involving himself and the president and who said what to whom at that dinner will be needed and sought by the pertinent congressional committees. It also helps form part of the damning pattern of obstruction of justice of which President Trump has all but convicted himself.
You are now making the case that even absent any clear connection of collusion between the Trump campaign and Russia to throw the election, Trump is complicit in a cover-up, which is itself illegal? Is this a standalone crime from your perspective?
Absolutely. Blowing smoke in the faces of duly constituted federal investigators so as to trip them up and make it harder both for them to uncover the truth and for them to persuade the people that they have done so is a serious abuse of power, regardless of whether that smoke concealed or came from any real fire. That's why one so often hears it said that the cover-up can be worse than the crime. And that insight was at the base of the remarkably impressive testimony Sally Yates deliveredunder oath to a subcommittee of the Senate Judiciary Committee recently.
I have been obsessing for months now about the legal force of Trump's words and tweets. This was a big theme in the travel-ban arguments at the Fourth Circuit last Monday. Are his admissions -- say to NBC News, that Comey was fired because of the Russia investigation -- of any legal moment? His supporters continue to say these are just words.
Words can be deeds ("performative speech"), as when one pleads guilty to a crime in open court or says "I do" in a formal marriage ceremony -- not to suggest that those two are substantively similar!
And even when words are not genuine examples of performative speech -- "speech acts," whose very utterance changes the legal reality -- they can operate as "real threats" (as in cases of overt or covert witness intimidation, akin to Trump's thinly veiled threat to Comey in his now-infamous tweet) and can both shape the impact of the deeds they accompany (as when someone says "I'm excluding you from the country because I think Islam is a violent religion and Muslims suck") and provide crucial evidence of why those deeds were performed (as when one says "I'm firing you because I think Muslims are dangerous"), which constitutional doctrine often makes decisive, or at least relevant, in assessing the lawfulness of government actions.
The professors' amicus brief written by Joshua Matz that I joined in the en banc circuit court proceedings involving Trump's travel ban was a powerful explication of that key principle of constitutional adjudication.
James Clapper is saying that Trump also was not truthful about morale at the FBI under Comey. Is that material? At what point are the steady stream of provable lies from the president relevant to your claims about high crimes and misdemeanors?
Deliberately misleading federal investigators and other federal employees was among the charges included in Article One (obstruction of justice) of the Bill of Impeachment against Nixon.
And deceiving the American public on matters directly pertinent to the institutions and processes of government, taking advantage of one's high federal office to give one's lies both cover and credibility, is certainly a grave abuse of executive power -- and is indeed the essence of the unenumerated offenses the Framers clearly contemplated by the open-ended phrase, "high crimes and misdemeanors."
Even if lying to and/or misleading the public -- as opposed to deceiving official bodies under oath -- is not and could not be made a civil offense, that by no means implies that such a pattern of deliberate deceit is irrelevant to the ultimate inquiry of whether one has forfeited the public trust that alone entitles one to retain a position of power in the United States government.
"Can You Believe the World We Live In?"
Trump Doesn't Understand "Classified"
Juan Cole / Informed Comment
(May 16, 2017) -- Donald Trump is most probably not a Russian spy. He may have unusual connections to Russian businessmen (that isn't clear), and seems to have made $100 million off Russia since 2008 (not that huge a sum for a multi-billionaire).
Donald Trump is a braggart. He grabs a piece of information the way a crow grabs paste jewellery. Unlike the crow who will likely hoard it, Trump passes it around for all to see.
Greg Miller and Greg Jaffe at WaPo got the story. Trump was bragging to the Russian Foreign Minister Sergey Lavrov and the Russian ambassador to the US, Sergei Kislyak and a whole gaggle of Russian reporters from outlets like RT and Sputnik (the US press was excluded, apparently for being the worst people in the world).
We have the best intelligence, he said.
Then he told the story of how we know from an ally who has a spy inside ISIL (ISIS, Daesh) in a particular city, and who discovered that ISIL has an evil plot. They want to take the batteries out of laptops, and fill the space in with a special explosive that is hard to detect. That explosive has to be detonated with a fuse lit on fire, it can't be done remotely. So the plan was to get a laptop-bomb aboard a plane and light a quick match and ... kablooie.
This is a variation of previous al-Qaeda plots– the shoebomber put the material in the heel of his shoe, which is why we have to take off our shoes at the airport. They were thinking of dissolving it in a big cup of liquid, which is why we can't take receptacles of liquid bigger than 3 oz.
The underwear bomber over Detroit in 2009 used the same substance, but it is hard to ignite and he had it in a pouch in his underwear, and well, I think he probably can't have kids anymore, besides doing life in a Federal penitentiary. The underwear bomber had a pouch on his body, which is why those machines at the airport want to see under our clothes.
The big deal is not that Trump told the Russians the vague outlines of the plot. It had more or less been announced because the US is putting pressure on the airlines not to let customers bring laptops into the cabin. I figured that out immediately on hearing it.
The big deal is that Trump told them from which city the foreign intelligence partner of the US derived the information, i.e. which ISIL cell has been penetrated. The US has not told that to anyone among allies, for fear of compromising an ongoing intelligence operation.
Trump may have just killed the spy who with incredible bravery penetrated ISIL.
But if Trump had wanted to slip the Russians this information, he could easily have done so indirectly, through back channels, using some of his private bag men.
He wasn't deliberately leaking.
He cannot understand the concept of classified information or the consequences of revealing sources and methods.
Despite the attempt to whitewash all this by National Security Adviser H. R. McMaster, it is clear that a serious violation was commited by Trump.
Trump is not fit to be president, as a matter of temperament. But his temperament was on full display before the American public and they voted for him anyway, so those voters deserve him.
I can't let another irony go by. The intel officials who leaked all this to the Washington Post were doing exactly what Edward Snowden did. The WaPo editorial board, despite having itself published some Snowden revelations, has called for him to be jailed. Would they like to call for these leakers to be jailed, too? Or are only some leaks good and others bad.
Another irony is that Snowden is not proved to have endangered any US intelligence assets, whereas we now know that Trump has certainly endangered that of an ally. Snowden made his revelations to protect the US constitution from the American deep state. Trump made his to show off to Lavrov, sort of the way he would boast of his sexual prowess to a night club date.
We have the best intelligence.
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