Published by The Lawfare Institute
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Garrett Graff has a fascinating article about the alarming but plausible things Donald Trump might do to maintain the spotlight and raise revenue after he leaves the presidency. There are many horrors—but at the top of the list is the possibility that Trump could sell national secrets to foreign governments and interests. Graff notes that “Trump has surely learned secrets worth literally trillions of dollars—information about U.S. espionage capabilities, intelligence assets on earth and in outer space and nuclear and war plans, as well as the quirks, perversions and predilections of leaders and politicians the world over.” He speculates that Trump could “offer up the nation’s geopolitical, surveillance and intelligence secrets to the highest bidder.”
I agree with the former senior government attorney who told Graff that “obstacles” would stand in the way of prosecuting Trump for these actions and that “[i]t would be a novel argument that criminal laws apply to” Trump. There is much more to say on this topic than the quick first-cut sketch below. But the bottom line is that Trump would face legal danger if he took these steps, and the danger would be greater if he sells the secrets as an ex-president than if he does so as president.
Graff notes that the entire system of classified information derives from the president’s Article II power. Executive Order 13526, which constitutes, defines and governs the classified information system, is based on “the authority vested in [the] President by the Constitution and” some unspecified “laws of the United States.” As the Supreme Court stated in Department of the Navy v. Egan, “[the President’s] authority to classify and control access to information bearing on national security ... flows primarily from this Constitutional investment of power in the President and exists quite apart from any explicit congressional grant.” This is why presidents don’t need security clearances, don’t sign prepublication review documents and can declassify classified information at will. It is a frighteningly broad and important power—the kind of power that, before Trump, it was impossible to imagine an elected president would betray.
One consequence of this extraordinary power is that the president cannot be criminally liable while in office if he discloses classified information—to the public or, as Trump has often done during his presidency, to journalists and foreign governments. The president defines what is and isn’t classified, which means that he can determine in his discretion whether to disclose the information.
But what if Trump sold this information to a foreign country for cash, as Graff speculates? There are many laws that govern this kind of thing when someone other than the president does it, and the law in practice is complex. One prominent statute is 18 U.S.C. § 794(a). It provides in relevant part:
Whoever, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates, delivers, or transmits, or attempts to communicate, deliver, or transmit, to any foreign government, … any … information relating to the national defense, shall be punished by death or by imprisonment for any term of years or for life.
Section 793(d) of Title 18 similarly provides:
Whoever, lawfully having possession of, access to, control over, or being entrusted with any … information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits … the same to any person not entitled to receive it ... [s]hall be fined under this title or imprisoned not more than ten years, or both.
Do these statutes apply to a president or ex-president who sells national security information that injures the United States?
The next administration—whenever it might arrive—might have difficulty applying Sections 793(d) and 794(a) to Trump if he sells the secrets while still president, for two reasons. First, the statute might not apply to the president since it lacks a plain statement that it does. The Justice Department’s Office of Legal Counsel (OLC) has taken the view, based on Supreme Court precedents, that criminal statutes typically must specify the president to apply to him. OLC has acknowledged an exception for actions that fall outside the scope of the president’s Article II power. Telling a foreign government about classified secrets may well fall within an Article II power, but doing so in exchange for money might not. Indeed, OLC’s example of a criminal law that applies to the president even absent a plain statement—the bribery statute—might be implicated by the hypothetical sale of secrets along with §§ 793 and 794. Such a sale would appear to be an act by “a public official” who “corruptly … receives … anything of value personally … in return for … being influenced in the performance of any official act.”
Second, Trump might claim that he declassified the information and thus definitively deemed it nonharmful to the national defense before selling it. Whether his actions in the course of selling the information constituted declassification may be hard to discern. The president’s power to declassify is sweeping. But disclosing the information in exchange for money or a promise of future benefit might be seen as evidence that the secret information remains important to the national defense—because otherwise it would lack value.
Once Trump leaves office, his criminal exposure for selling secrets broadens. He no longer controls what is and isn’t classified, and the plain statement canon almost certainly does not apply to former presidents for nonofficial acts. Setting aside the vagueness and related challenges that invariably arise in these cases, it appears that the statutes would apply to the hypothesized actions by a former President Trump. (For an explanation of why these statutes apply to mere “oral transmissions” of national defense information, see this case at pages 613-18.)
Of course, it might be difficult to monitor Trump’s sale of national security secrets. As Graff anticipates, Trump might not be stupid enough to make straight-up cash-for-information deals. Rather, foreign governments and interests might bet that giving former President Trump a large consulting fee would lead to the casual revelation of important secrets during the course of dinner, meals, golf outings and the like. One can already anticipate the tricky and novel issues the National Security Agency might face when its normal practice of foreign intelligence intercepts implicates the dubious actions of an ex-president.
This is all a nightmare for the intelligence services, and I am sure it is one they have been worried about throughout Trump’s presidency. It is at least a small consolation that Trump has not paid much attention to intelligence matters during his time in office. One former Trump official told Graff: “I don’t really believe he’s got the depth of knowledge to go explain to a foreign power the level of penetration that the NSA has gotten into various systems. I don’t think he can undermine the sources and methods of U.S. intelligence. He doesn’t know enough with enough fidelity to be actually destructive.”
But of course Trump might wake up to the value in such matters and demand briefings during the transition if he loses the election—which will make for some very interesting decisions about whether and, if so, how the intelligence agencies might delay or curtail intelligence briefings. Moreover, as Graff notes, even a president indifferent to intelligence reporting would have learned lots of valuable secrets during his presidency—“where the U.S. possesses a unique weapon, capability or protective measure,” for example, as Graff notes.
For 70 years, the U.S. government has constructed the classified information system on the foundation of the president’s power and discretion. The designers of this system clearly did not have a president like Donald Trump in mind.