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Obama's Classified Leaks Are Probably Not Prosecutable

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.