The ouster of General Michael Flynn, President Trump’s National Security Adviser, marks the moment when the campaign waged against Donald Trump by certain members of the US intelligence community tipped over into outright illegality.
Moreover the law that was broken is a very serious one, and if the case is followed up – which it may be – and if the people involved are caught – which they might be – they could face long prison sentences.
The law which was broken is carefully explained by Glenn Greenwald who is a lawyer himself
Gen. Michael Flynn, was forced to resign on Monday night as a result of getting caught lying about whether he discussed sanctions in a December telephone call with a Russian diplomat. The only reason the public learned about Flynn’s lie is because someone inside the U.S. government violated the criminal law by leaking the contents of Flynn’s intercepted communications.
In the spectrum of crimes involving the leaking of classified information, publicly revealing the contents of SIGINT — signals intelligence — is one of the most serious felonies. Journalists (and all other nongovernmental citizens) can be prosecuted under federal law for disclosing classified information only under the narrowest circumstances; reflecting how serious SIGINT is considered to be, one of those circumstances includes leaking the contents of intercepted communications, as defined this way by 18 § 798 of the U.S. Code:
Whoever knowingly and willfully communicates … or otherwise makes available to an unauthorized person, or publishes … any classified information … obtained by the processes of communication intelligence from the communications of any foreign government … shall be fined under this title or imprisoned not more than ten years, or both.
That Flynn lied about what he said to Russian Ambassador Sergey Kislyak was first revealed by Washington Post columnist David Ignatius, who has built his career on repeating what his CIA sources tell him. In his January 12 column, Ignatius wrote: “According to a senior U.S. government official, Flynn phoned Russian Ambassador Sergey Kislyak several times on Dec. 29, the day the Obama administration announced the expulsion of 35 Russian officials as well as other measures in retaliation for the hacking.”
That “senior U.S. government official” committed a serious felony by leaking to Ignatius the communication activities of Flynn. Similar and even more extreme crimes were committed by what the Washington Post called “nine current and former officials, who were in senior positions at multiple agencies at the time of the calls,” who told the paper for its February 9 article that “Flynn privately discussed U.S. sanctions against Russia with that country’s ambassador to the United States during the month before President Trump took office, contrary to public assertions by Trump officials.” The New York Times, also citing anonymous U.S. officials, provided even more details about the contents of Flynn’s telephone calls.
That all of these officials committed major crimes can hardly be disputed. In January, CNN reported that Flynn’s calls with the Russians “were captured by routine U.S. eavesdropping targeting the Russian diplomats.” That means that the contents of those calls were “obtained by the processes of communication intelligence from the communications of [a] foreign government,” which in turn means that anyone who discloses them — or reports them to the public — is guilty of a felony under the statute.
The same point has been made by General Flynn himself in an interview with The Daily Caller
In some of these cases, you’re talking about stuff that’s taken off of a classified system and given to a reporter. That’s a crime. You call them leaks. It’s a criminal act. This is a crime. It’s not just a wink and a nod.
and of course by President Trump himself
The real story here is why are there so many illegal leaks coming out of Washington? Will these leaks be happening as I deal on N.Korea etc?
(bold italics added)
Part of the reasoning for the law – of particular pertinence to General Flynn’s case – is provided by Eli Lake for Bloomberg, who also says that Congressman Devin Nunes, the chairman of the House Permanent Committee on Intelligence, is asking the FBI to investigate the leaks
Normally intercepts of U.S. officials and citizens are some of the most tightly held government secrets. This is for good reason. Selectively disclosing details of private conversations monitored by the FBI or NSA gives the permanent state the power to destroy reputations from the cloak of anonymity. This is what police states do.
In the past it was considered scandalous for senior U.S. officials to even request the identities of U.S. officials incidentally monitored by the government (normally they are redacted from intelligence reports). John Bolton’s nomination to be U.S. ambassador to the United Nations was derailed in 2006 after the NSA confirmed he had made 10 such requests when he was Undersecretary of State for Arms Control in George W. Bush’s first term. The fact that the intercepts of Flynn’s conversations with Kislyak appear to have been widely distributed inside the government is a red flag.
Representative Devin Nunes, the Republican chairman of the House Permanent Select Committee on Intelligence, told me Monday that he saw the leaks about Flynn’s conversations with Kislyak as part of a pattern. “There does appear to be a well orchestrated effort to attack Flynn and others in the administration,” he said. “From the leaking of phone calls between the president and foreign leaders to what appears to be high-level FISA Court information, to the leaking of American citizens being denied security clearances, it looks like a pattern.”
Nunes said he was going to bring this up with the FBI, and ask the agency to investigate the leak and find out whether Flynn himself is a target of a law enforcement investigation. The Washington Post reported last month that Flynn was not the target of an FBI probe.
(bold italics added)
In other words, not only were the members of the US intelligence community who leaked information anonymously about General Flynn’s call to Russian ambassador Kislyak acting illegally; they were behaving like members of the secret police of a police state.
Interestingly Donald Trump himself is now quoting Eli Lake
Thank you to Eli Lake of The Bloomberg View – “The NSA & FBI…should not interfere in our politics…and is” Very serious situation for USA
The real scandal here is that classified information is illegally given out by “intelligence” like candy. Very un-American!
(bold italics added)
In his article Greenwald tries to excuse the breaking of the law by the officials who leaked details of General Flynn’s call to ambassador Kislyak by saying – rather laboriously – that they were justified in doing so in order to expose General Flynn’s lying about the call.
Since it is however becoming increasingly clear that General Flynn did nothing wrong during the call, and since it is from clear that he lied about it, it is impossible to see how that can be so. Certainly the public interest defence, which is what Greenwald is probably alluding to, does not apply.
Until recently President Trump was hamstrung in taking action against the ‘anonymous officials’ who were leaking against him because the delay in getting Jeff Sessions confirmed as Attorney General meant that the Department of Justice – headed first by Sally Yates, who it is now clear was working against him, and then under caretaker management – was not under his full control. Now that Jeff Sessions has been confirmed as Attorney General that is no longer the case.
President Trump’s tweets suggest a leak investigation by the FBI may soon be underway. If President Trump wants to put a stop to the leaks which are undermining his administration, then he should make that investigation his priority. If so it is debatable whether the Washington Post, the New York Times and CNN are legally entitled to protect their sources by concealing the identities of federal officials who appear to have committed a serious federal felony. If the FBI contacts them and demands the names of the officials who gave them the information, then they may find that they have no choice but to disclose the names or face legal action for obstructing justice.
The ball is in the President’s court. It is up to him and his Attorney General now to act. If he fails to do so, so that officials willing to break the law in order to undermine him think they can do so with impunity, then he risks losing control first of the bureaucracy, and then of his administration.