Trump Raid: This Has Happened Before

Donald Trump, a past president, asserts he orally declassified the private documents the FBI took from his Mar-a-Lago estate.

If he can show that actually happened, the reasoning is not as extraordinary or ridiculous as is often assumed.

The Story

Nearly 20 years ago, Justice Department prosecution debated whether Vice President Dick Cheney and President George W. Bush could arbitrarily give Cheney’s chief of staff, Scooter Libby, permission to reveal key findings.

These findings were of a strong intelligence assessment on Iraq’s efforts to acquire WMD. Special Counsel Patrick Fitzgerald decided not to prosecute Libby for disclosing classified material to New York Times journalist Judith Miller and others.

This may have been influenced by Libby’s assertion that she received a direct, recorded release order from Bush and Cheney.

Instead, Fitzgerald filed charges of perjury and obstructing justice against Libby in 2005, avoiding any charges relating to the publication of the National Intelligence Estimate research results.

This also avoided the matter Fitzgerald was assigned to look into: whether the Bush White House or anyone else in government leaked Valerie Plame’s individuality to journalists.

Steven Aftergood, a foremost expert on classified info policy, claimed the Libby case may have been the first instance in recent memory when the issue of unilateral president declassifications came up.

It was granting once-off consent to a specific person to share information with a particular person. It draws attention to the fact the president either claims to or actually does fall outside of the system of categorization.

Compared to Trump

The Libby case does not directly compare to the current controversy surrounding Trump’s treatment of classified information.

However, it does demonstrate previous prosecutors have recognized some subtleties in how a president might be able to declassify data without leaving a clear paper trail.

Trump is no longer in office. His acquisition of allegedly sensitive national security data raises a number of possible legal issues is one of his problems.

Similar to Libby’s case, there are charges unrelated to those involving classified material that might be filed against Trump.

However, the incident from the days following the 2003 war on Iraq brings to light the challenges in pursuing prosecutions of secret material in cases that have clear ties to the White House.

According to Aftergood, a senior researcher with the Federation of American Scientists, “the problem was and is ambiguous.”

In criminal proceedings involving intrusions or leaks of sensitive national security information, the government often has to demonstrate the data was appropriately classified at the time it was disclosed or “closely held” under some release control framework.

Ironically, if convicted under one of those rules, Trump could be able to point to his own careless handling of classified material as proof it wasn’t “closely guarded” before it reached Mar-a-Lago.

This article appeared in The Patriot Brief and has been published here with permission.