Judge pumps brakes on dismissing charges against Michael Flynn
A federal judge is now allowing input from outside groups on the DOJ decision and how the court should respond; John Roberts reports from the White House.
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Fox News is reporting that there may be some tension between Justice Department officials and Richard Grenell, the acting Director of National Intelligence, regarding the declassification of information related to “unmasking” – i.e., the revelation of the identity of Americans incidentally intercepted during our spy agencies’ collection of foreign intelligence.
I suspect that there may be less friction here than confusion, probably on ODNI’s part, and probably about Justice Department rules and procedures.
In the government, classified information “belongs” to the executive branch, whose intelligence agencies collect and analyze it. That is why the president is the ultimate authority, having the power to declassify any such information.
Beneath the president, intelligence officials may review specific classified information if they have a “need to know” and sufficiently high-level security clearances. But the information “belongs” to the intelligence agency that collected or created it.
A concrete example. If an FBI agent had a security clearance high enough to authorize access to a file of top-secret intelligence collected by the CIA, that agent would be permitted to see that information. But neither that agent nor the FBI would be authorized to declassify it so it could be shared more widely. Only the CIA could do that. In terms of equity, it would be the CIA’s information.
To grasp what’s going on with the unmasking issue, we also need to distinguish the declassification of information from the publication of that information.
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The vast majority of information held by the government is not classified. Yet, most of it is also non-public. The government has the power to compel people to produce various categories of information, and it may store and analyze that data. There is a trade-off, though: To protect people’s privacy (among other reasons), the government may not disseminate information publicly in the absence of a lawful reason.
In particular, the Justice Department does not disclose information just to disclose it, or just because the public might find it fascinating. DOJ must have a legal reason for publicizing previously non-public information.
We saw that last week, when DOJ moved to dismiss the case against Michael Flynn. Appended to the motion were exhibits that included non-public FBI reports, some portions of which may have been classified at some point. That information had been kept under wraps for years. But until the Justice Department filed a legal submission in a public court proceeding, to which these documents were relevant, no classified portions were declassified, and none of the information was made public.
Obama officials unmasked an unusually large number of Americans, reportedly including many connected to Donald Trump. Several Obama officials were apparently involved. We should know which officials.
Classified and other sensitive information relevant to the Trump-Russia investigation is of immense public importance. President Trump has said that he’d like to see the information made public. This has been frustrating for those of us closely watching the story because the president has the power to declassify and publicize. Yet, he obviously does not want to be accused of harming national security. (By definition, information is classified because it’s publication would harm national security.) Nor does he want to be accused of compromising investigations, which can be undermined if information that is sensitive is prematurely publicized.
On the other hand, history and common sense teach us that the intelligence agencies’ authority to stamp information “classified” creates great temptation to exploit that authority to hide information that could be embarrassing or even incriminating. They chide us that insisting on disclosure somehow imperils national security or endangers intelligence sources.
Clearly, Grenell’s job at ODNI includes breaking this disclosure barrier. The president is frustrated by the resistance he has gotten from intelligence agencies, who never want to disclose anything. Grenell, an ardent Trump supporter who had been serving as U.S. ambassador to Germany, has been sent to ODNI, in part, to ensure that information related to the Trump-Russia investigation is disclosed unless there is a truly compelling reason to keep it concealed.
The unmasking controversy is of great public interest. Obama officials unmasked an unusually large number of Americans, reportedly including many connected to Donald Trump. Several Obama officials were apparently involved. We should know which officials. We should know why they included some, such as U.N. Ambassador Samantha Power, who had little or no need to know the identities of Americans intercepted in foreign intelligence collection. On paper at least, Power was responsible for hundreds of unmaskings.
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Grenell has reportedly declassified this information, which he was apparently empowered to do because ODNI has equity over it. Now, he wants it publicized. He realizes it is relevant to DOJ’s investigation into the genesis of the Obama administration’s Trump-Russia probe. Grenell thus seems to have figured that transmitting this now-declassified information to DOJ was the best way to get it released publicly.
Again, however, the Justice Department must have a lawful purpose to publish information. DOJ is still investigating, and investigators virtually never want evidence to become public until their investigation is concluded. DOJ is no doubt very interested in the information Grenell has provided; but it has no immediate legal need or strategic desire for public disclosure.
That said, the usual rules apply. Therefore, if the classified information belongs to ODNI, then ODNI has the power to declassify it. And if ODNI has declassified the unmasking information, and believes it has a legitimate reason to disclose that information publicly, it may do so … though Grenell will have to brace himself for the uproar from critics who will claim ODNI has acted politically, and potentially to the detriment of national security.
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If the Justice Department’s investigation is to be regarded as good-faith law-enforcement rather than politics, then DOJ cannot be perceived as declassifying and publicizing information for political purposes. From DOJ’s perspective, the unmasking information need not be disclosed unless and until there is a legitimate law-enforcement reason for doing so.
By contrast, if the unmasking information belongs to ODNI, then DNI Grenell has the authority to declassify it, and perhaps to disclose it. But he would have to be able to explain why doing so was an appropriate exercise of discretion in the public interest, rather than an abuse of power for political advantage.