Obama’s Classified Leaks Are Probably Not Prosecutable
In my post over the weekend about the folly of pushing for a special prosecutor on the Obama administration’s intelligence leaks to the New York Times, I argued that holding the president politically accountable is far more important than indicting the leakers; therefore, Congress should do its job and shine intense light on this scandal rather than abdicate to a criminal investigation — ultimately supervised by Obama and his attorney general — which would simply bury it. Among the points I made was that the criminal case is probably a loser anyway:
The lesson here — of far more political than legal significance — is that President Obama is a reckless custodian of the nation’s secrets. That is yet another good reason why it is so important to defeat him come November. The rest — who said what — is details. It’s the guy in the Oval Office who sets the tone. And that guy, by the way, is fully empowered to declassify whatever information he chooses to declassify, no matter how sensitive, no matter how damaging its disclosure. So if it turns out that Obama effectively approved the leaks, they are probably not actionable disclosures of classified information anyway.
John L. Martin, another longtime federal prosecutor — and one with unparalleled experience in espionage cases involving classified information — makes the same point. In his Newsmax column today, veteran reporter Ron Kessler cites Martin in making the point that “if Obama authorized or condoned the release, the information would no longer be technically classified and its release would not be considered a leak. Obama has not flatly denied that the information — classified or not — came from the White House or that he authorized or condoned its release.”
This hardly means that Martin absolves Obama — not politically. To the contrary, like most of us who have had to guard the nation’s secrets, and its methods and sources for gathering them, he is apoplectic. Ron’s column continues:
If Obama had not authorized or condoned the leaks, he would have immediately publicly denounced them and promptly ordered the Justice Department to conduct a criminal investigation, Martin says. Instead, he addressed the issue days after the stories provoked bipartisan outrage on the Hill, leading Attorney General Eric Holder Jr. to appoint two U.S. Attorneys to lead a probe of the leaks.
“A blameless leader would have publicly condemned the leaks immediately and instructed those in the executive branch, particularly on the president’s and vice president’s staff, to come forward with any knowledge, direct or indirect, about the source of the leaks,” Martin points out.
Martin finds it inconceivable that CIA operatives or other intelligence professionals would have leaked such information. “If you are in the intelligence community, you don’t put the lives of people who have helped you in danger,” Martin says. The fact that the leaks compromised live CIA assets and ongoing programs, and that the stories portrayed Obama in glowing terms, means they have “politics written all over them,” he says.
As their sources, some of the stories cite Obama’s national security team and individuals who were in meetings with Obama in the Situation Room. “No one knowing the sensitivity of all of this information in a series of stories would do it on his own,” Martin observes. “They would need approval from a higher up. The ultimate higher up and the ultimate beneficiary of the leaks is President Obama.” Says Martin, “My conclusion is that the leaks were done to enhance Obama’s standing on national security issues and that it was done with his knowledge and consent.”
It is easy, in our outrage over this sorry episode, to get swept up in the desire to see people who have acted irresponsibly get their comeuppance, but conservatives concerned about national security need to be consistent.
Well yes and no. Depends on whether Obama finds it convenient to throw a patsy under the bus. If BHO mans up and admits he authorized them, then he’s not subject to legal consequences but he’ll have to take the political consequences. If on the other hand Barry leaves e.g. his Deputy NSA (who has no independent authority to disclose classmat) to take the fall and denies he authorized the leak, then there will be at least a putative crime (of course, at trial or pre-trial the patsy might well roll over; it’s the obvious defense).
How about an April 27th, 2011 computer generated forged birth certificate and a fraudulent registration with the Selective Service administration, are they prosecutable? We will soon find out if Sheriff Joe Arpaio and his lead criminal investigation team have their way. It would be great to see Andrew McCarthy team up with Frank Gaffney, Attorney Larry Klayman, Attorney Mario Apuzzo, Attoney Herb Titus, journalist Diana West, Major Geneal Paul Vallely, Dr. Jerome Corsi and Joseph Farah from Worldnetdaily and bust this eligibility case wide open and present their findings to the United States Congress.
DonaldYoungsRevenge… Don’t hold your breath…. there are few of us birthers who really care, and no, our first black president will NEVER be brought up on any charges for lying to us about his true idenity.
He is not our first black president, he is our first White black boy “occupying” the White House.
Why do we ignore that his mother was White?
Why is a hispanic male called white, then when found he is hispanic White Hispanic. So in the spirit of consistancy he is White black.
Prosecutable or not, the leaks are yet another nail in BeeHo’s coffin. And besides, he will be out of office by the time such a prosecution might commence.
“If the president decides to make information public, it is public — no matter how classified it was before, and no matter who in the government thinks the publicizing of it is a bone-headed move. The president gets to do that — and that’s part of why it matters who the president is.”
What would we do as a nation if the president decided to talk about highly classified information on a regular basis to the press? What if he discusses our military options in Pakistan or the type of CIA presence we have in that country? What if you also starts talking about our contingency plans if we have to go to war with Iran? Worse, what if he started blabbing about what our response would be if Israel were attacked by Iran? There are a lot of secrets out there and if the president goes off the reservation and spills his guts to the press for political purposes, then we have a deep problem in the White House.
I wonder if a vice president would have the guts, under the 25th Amendment of the Constitution, to replace the president if he thought the president was unstable enough to carry out his job? When and where do you draw the line about White House sanctioned leaks (which these seem to be) and the number of lives that could be lost as a result of those actions? Politics is one thing, but if the president continues to leak classified information this way, you may have a really big Constitutional crisis on your hands. Do you take action and replace the president under the terms of the 25th Amendment, or do you leave him in office and risk having God knows how many people killed because of classified information being made public? It’s a hard question to answer.
There is enought criminal evidence coming out of Sheriff Joe Arpaio’s criminal investigation that would have cause a Republican President to resign a long time ago. That evidence has been around a long time before Sheriff Joe Arpaio began his own investigation. Congress knew Obama could never meet the Constitutional requirement to be a “natural born Citizen” yet they sat back in silence which makes them as guilty as the person committing the treason. There was also evidence that proved he used fraudulent documents to conceal that fact and again not one Congressperson has come forth to demand an investigation. They want to sweep it all unde the rug and hope for an Obama defeat in November. Allowing Obama to be on a ballot is a defeat in November for all those who love and respect the US Constitution. Shame of those Republican’s in Congress (no shame for the Democrats, we know how they act).
your meds are ready…this isn’t a political thing either, it’s just i like helping sick people if i can. you need your meds right away.
If President Obama did declassify this material, then that act is documented (if not, laws were broken). And since he’s pretending that he didn’t declassify it, having to admit he did, to save those who spoke to the reporters, will destroy him.
Also, it’s not obvious to me that the President has complete and absolute control over all classified information simply because he is head of the Executive branch. Give him the authority to handle emergent situations and explain afterword, but this “I can do anything with classified information that I want” doesn’t seem right to me.
We have a President who cannot pass the backround investigation required to be a guard at the gate of the house he resides in, why would we expect him to keep secrets? Lives mean nothing to him, he’s proven that time and time again (CIA agents prosecution threats for example), every person and anything that he thinks he can use as a tool to continue his rule is fair game in his mind. Nothing is off the table for him, and the only way we’ll ever find out what he has really done is through informants from the highest levels who are facing the most severe penalties. And that cannot happen until he is out of office and the carot of a Presidential Pardon no longer protects his crew…
I am sure you are right on the law but there has to be some limit to what secret information a President can divulge, doesn’t there?
There is a written protocol for declassification, and ordering or otherwise verbally authorizing a leak is NOT part of it. Classified information remains classified, even if it is published. Even now! It remains classified, unless the protocol to declassify has been initiated AND completed.
You may think this is being anal, but the LAW is anal, and for good reason.
Leaks remain prosecutable offenses.
I’d heard that the law was an ass.
Perhaps the leaks are not prosecutable offences, but …. impeachable?
“High crimes” they may not be, but “Misdemeanors”, certainly.
It is all too easy to forget that things he declared to be state secrets, and required his subordinates to not reveal under penalty of law, impose upon him, the commander, the same obligation, else such future requirement of other subordinates become meaningless, and ultimately worthless.
The first rule of command, be it high or low, is loyalty to the chain of command. Loyalty from below MUST be answered with loyalty to below. Without it, the trust required for command is ruined. Even if not prosecutable, a disloyal commander will reap but contempt from his subordinates, be it ever so silent, and become ineffective. Something this dude never learned.
All of which has to do with holding fixed principles, akin to respecting a fixed Constitution instead of a “living” one, another thing with which this gent appears to have some difficulty. Let’s just call it integrity … totally absent integrity! Time to go, buddy. Better men are waiting to take your place. Vote him back to Chicago; at least he’ll be with people he understands!
not illegal in any way, but impeachable? half the population needs to be shot, i swear.
From legal-dictionary of The FreeDictionary.com: “The phrase high crimes and misdemeanors is found in the U.S. Constitution. It also appears in state laws and constitutions as a basis for disqualification from holding office. Originating in English Common Law, these words have acquired a broad meaning in U.S. law. They refer to criminal actions as well as any serious misuse or abuse of office, ranging from Tax Evasion to Obstruction of Justice. The ultimate authority for determining whether an offense constitutes a ground for impeachment rests with Congress …The generally accepted viewpoint is much broader. It defines high crimes and misdemeanors as any serious abuse of power—including both legal and illegal activities.”
You’re free to check other legal sources if you wish, Josh.
Personally, I do not believe that the President should be impeached over this. Andrew McCarthy is clearly correct regarding the President’s de-classification prerogatives, as well. But, as someone who works in the Executive branch and deals daily with the creation and maintenance of classified material, as Mr. McCarthy once also did, the President’s actions are offensive and worrisome, and I believe ultimately harmful to the nation. Snarky comments aside, what do you believe?
IIRC, Libby wasn’t convicted of leaking Plame’s identity but for perjuring himself over a timeline of events or some such nonsense.
To clarify, Libby did not leak Plame’s name. Armitage did and the special prosecutor knew that early in the investigation.
I choose to believe it’s all moot. Feel free to join me in a soul-cleansing exercise.
“Five more months!” “Five more months!” “Five more months!” “Five more months!”
Moral equivalence? Take that and shove it.
There is a written protocol for declassification, and ordering or otherwise verbally authorizing a leak is NOT part of it. Classified information remains classified, even if it is published. Even now! It remains classified, unless the protocol to declassify has been initiated AND completed.
Yes, but again, all executive power is vested in the President and he can likely overrule any protocols at will.
Obama’s best case scenario now is that someone actually did leak it without authorization. He’ll still pay a huge political price for being so lackadaisical in his response, but that’s his best case. It’s more likely that he did authorize it, and I doubt anyone will agree to be a patsy for 20 years in federal prison (Obama could promise a pardon, I guess, but would anyone be so gullible as to believe that promise?).
Double-post, I know — didn’t catch it ’til after that there’s a ‘reply’ link on this board. At the risk of being boring and redundant:
“Yes, but again, all executive power is vested in the President and he can likely overrule any protocols at will.”
Are you really sure you’re OK with that? Where does that end..?
Doesn’t matter if I’m OK with it, because that’s what the Constitution says.
That’s just legally speaking though. Politically speaking, he should get hammered and voted out.
Your evaluation of this is so very correct and clear — it’s just a pity that there doesn’t seem to be one voice on TV News — not even on Fox – which expresses it.
The following points — are the ultimate point of all this — and ought to be emphasized:
“IF OBAMA HAD NOT AUTHORIZED OR CONDONED THE LEAKS,
HE WOULD HAVE IMMEDIATELY PUBLICLY DENOUCED THEM
AND PROMPTLY ORDERED THE JUSTICE DEPARTMENT TO CONDUCT A CRIMINAL INVESTIGATION ….”
“… PRESIDENT OBAMA IS A RECKLESS CUSTODIAN OF THE NATION’S SECRETS.”
Sounds like a quotable quote for a Romney campaign ad.
it may not be illegal if the president has indeed declassified the information, but the political question would be “for what reason?” The reason, nakedly obvious to many, is to attempt to secure Obama’s re-election. And that is unlikely to play well with voters. Obama declassified, people died.
Every one, including the author, is missing the real purpose of the leaks. Sure, the leaks are self aggrandizing for the administration. That aspect is crystal clear but what is the real underlying reason for them? To set a trap for congressional Republicans and some have fallen for it. This desperate and corrupt administration would like nothing more than to get the Republicans to scream for a special prosecutor and thereby give the impression that Obama is a persecuted president a la Clinton. The MSM would take up his cause in a heartbeat. It would be much better to use the leaks, as well as Fast and Furious, as campaign themes and let the electorate deal with the problem. No more Obama, no more problem.
There will be more leaks coming, the pipeline is open and it is timed. Another curious decision is why for instance not release the JFK files after 50 years….
It kinda depends on what the definition of ‘High Crimes and Misdemeanors’ is.
12. jthc
…
Yes, but again, all executive power is vested in the President and he can likely overrule any protocols at will.
Are you really sure you’re OK with that? Where does that end..?
If I rememrer correctly, Bill Clinton declassified almost every secret we had within a week of being inaugurated. The fact that nothing happened to him as a result suggests that the author is probably right.
Still, it seems that some waterboarding may be in order.
RICHARD! DON’T TEMP ME.
You know more people die from snowboarding than they ever did from waterboarding.
This Prezzie from the stezzie MUST GO.
I argued that holding the president politically accountable is far more important than indicting the leakers.
Actually, the two are one and the same. The U.S. Constitution put in a safeguard against disloyal or reckless presidents: impeachment. They did the same for legislators and judges. But, alas, the non-use of this key cog in the checks and balances has allowed to the sad, globo-socialist insolvent state at which we’ve arrived.
No one has the nerve to go after this black president for any reason… so of course he will get off scott free.
Mitt 2012
But Obama has said that he has not authorized these leaks. So if he did not, then these ARE criminal. If it turns out he did authorize them he should admit so otherwise the President is lying to Congress and the American people. He just wants to avoid having to admit he did so his use of leaks as Campaign ad does not backfire.
A 3rd possibility is that someone under Obama leaked this information in support of Obama without Obama’s knowledge initially. Possible the President now knows this and would like to protect the individual. In the case Congress *MUST* get involved because then the leaks were criminal (without prior Presidential authorization to declassify) and now the President or his direct reports are now assisting in a cover up of the criminal behavior.
Until Congress knows unequivocally that these leaks are authorized they should be pursued as a criminal manner. If Obama wants to end this because they were legal, then admit he allowed them and deal with the consequences.
If “Libby had been authorized by President Bush to make the disclosure” then Bush was a pretty major asshole for not pardoning him. This reasoning sure seems to amount to “you can never prosecute a leak of classified information to the press”.
I once held a classified clearance, and I sure as heck thought I could be prosecuted if I leaked any classified info, regardless of the cause. In fact, I still could.
obama’s narcissism is off the known scale. i wouldn’t doubt for a second that he authorized these extensive leaks in pursuit of his own aggrandizement. this arrogant impostor is like nothing the nation has ever seen, and the millions of unwashed acolytes that proffered this mess are culpable, to a one…..
This entire article was summed up by Richard Nixon in a single quote. “It’s not illegal if the President does it.”
Even this article admits one of two things happened. Either Obama declassified material for the sole purpose of using it to help his re-election campaign or there was a criminal act. Either Obama admits to the former or investigation into the latter is completely warranted, unlike the conclusions of this article.
Has everybody lost their minds in this political season?! Serious, very confidential leaks are flowing to the NYT like its everyday news! Diane Fienstein, a very liberal Democrat, was one of the first to speak up in fear of the ramifacations of these leaks. People will die, Allies will no longer trust us, intelligence will dry up as a rusult of all this. Honestly people, this is worse than Watergate as these leaks are going to cost lives versus Watergate were politician lost jobs. For anyone not to realize how bad this is for our country today and 20 yars down the road are just playing political games. And Obama has done nothing to stop this! In fact he has only responded on this once and it was to, once again, blame the Republicans even though one of his most avid supporters was one of the first to be outraged by this. He should be turning the White House upside down to find these weasels. And what has Eric Holder done? Hire 2 people who report to him about who leaking this? Are you kidding me? This is corruption at the highest levels and it will end up bringing this administration down if they dont deal with this right now.