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.

Five years ago, Scooter Libby was falsely accused by the Left of leaking classified information from a National Intelligence Estimate. Unlike the Obama administration and the Obama campaign (the two are one and the same), who are leaking simply to burnish the president’s commander-in-chief credentials for re-election purposes, Libby’s disclosure was actually in the public interest: the Bush administration was trying to correct damaging misinformation about Iraq’s nuclear ambitions that Joseph Wilson had intentionally put into the public domain. But as a strict matter of law, the motive behind the disclosure was neither here nor there. The legal point, as I wrote at the time, was that Libby had been authorized by President Bush to make the disclosure:

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.

Classified information belongs to the executive branch. Under the Constitution, the executive power is vested in a single official, the president. As Justice Scalia pointed out in his classic dissent in Morrison v. Olson, this does not mean some of the executive power; it means all of the executive power. The president can make a bad de-classification decision, but it is his decision to make.


As I pointed out in the same column, all administrations do this sort of thing. After al Qaeda’s 1998 bombings of the U.S. embassies in Kenya and Tanzania, for example, President Clinton came under blistering criticism for authorizing a retaliatory strike against what was reported to be a mere pharmaceutical factory in Sudan. Richard Clarke, Clinton’s top counterterrorism aide, was duly dispatched to inform the press that the U.S. intelligence community was certain the factory was being used by Saddam Hussein’s regime, al Qaeda and the Sudanese Islamist government for a joint venture in nerve gas production.

Like Libby’s disclosure, Clarke’s was in the national interest because it corrected damaging misinformation that could have discredited appropriate actions taken in American national defense. By contrast, the Obama leaks are fueling what are basically campaign ads. But, again, from a prosecution standpoint, that is irrelevant. The president gets to disclose classified information for any reason, or no reason.

That is why the leak controversy, first and foremost, is about holding President Obama politically accountable. It is silly to focus on legal accountability. That is not only a matter of considerably less importance; it is one as to which there is virtually zero realistic hope for satisfaction.

Forget the criminal investigation, which will just give knowledgeable witnesses an excuse to withhold cooperation from any congressional inquiry. Congress needs to focus on the culture of recklessness Obama has fostered regarding the nation’s defense secrets — beginning with the transparently political disclosure of classified memoranda about the CIA’s enhanced interrogation program and continuing up to these latest nakedly political, campaign-driven leaks.



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