The Power of the Presidency Rests on Responsibility to the American People

By Robert J. Eatinger, Jr.

Bob has 35 years of experience practicing law in the fields of national security, intelligence, and international law. He is a solo practitioner at Robert J. Eatinger, Jr., PLLC, practicing federal law with a national security and intelligence law focus and the founding Principal of SpyLaw Consulting, LLC. Bob retired from the Central Intelligence Agency in 2015 where he was the Senior Deputy General Counsel. He served as CIA’s Acting General Counsel from October 2013 to March 2014.  Before being named the Senior Deputy General Counsel, Bob had held senior operational law positions and been chief of CIA’s litigation division.  Bob also served on active duty in the United States Navy, Judge Advocate General’s Corps, and retired in 2013 as a Captain with 30 years of combined active and reserve service.  

According to press reporting, President Donald Trump, during a meeting in the Oval Office on May 10, disclosed to the Russian foreign minister and the Russian ambassador to the United States, highly classified intelligence information that a U.S. ally had collected, classified in the interest of its own national security, and shared with the United States on the condition the United States not share it further. Thereafter began a debate in the media whether the president had demonstrated poor judgment, committed a crime, or effectively declassified the foreign government’s intelligence information when he disclosed that information to the Russian officials. In defending his actions, the president reportedly tweeted the following:

“As President I wanted to share with Russia (at an openly scheduled W.H. meeting) which I have the absolute right to do, facts pertaining to terrorism and airline flight safety. Humanitarian reasons, plus I want Russia to greatly step up their fight against ISIS & terrorism.”

It seems to me quixotic to argue the president’s disclosure of the ally’s intelligence information to Russian officials during an official meeting in the Oval Office violated U.S. criminal law. Espionage and other criminal offenses in U.S. law that involve the disclosure of classified information, or more correctly, “information relating to the national defense,” to representatives of foreign governments require the defendant to have acted without authority or in bad faith – knowing that his or her act was wrongful. There is no indication the president acted in bad faith, and there are no facts to support a claim he disclosed the information thinking it was wrongful to do so.

Further, while the president can make a mistaken or inadvertent disclosure of classified information, he cannot make an unauthorized one, at least not for purposes of U.S. criminal law. The authority to classify information and control access to such information arises out of the commander in chief powers the Constitution assigns to the president. No other executive branch official has authority to classify or control access to classified information except pursuant to a delegation of authority, or pursuant to a regulation, traceable back to the president. The president therefore has the authority to decide whether Russian officials should have access to that classified information.

Disagreements with the president’s judgment in sharing the information cannot make the disclosure a crime. Even assuming, for the sake of argument, that the president exercised poor judgment in disclosing the information to the Russians, poor judgment is not an element of the offense of espionage. Disagreements with how the president exercised his judgment are not to be addressed by law enforcement, but by the American people in the political arena and ballot box, and by the ally whose classified intelligence was allegedly disclosed in the conduct of foreign relations.

For example, the ally that reportedly shared the information on the condition the United States not share it further may now decide based on the president’s action not to share similar, source-revealing counterterrorism information with the United States during this administration, at least until it is convinced the administration will in fact honor conditions it places on shared intelligence. So too may other countries that share intelligence with the U.S. view the president’s decision not to respect the security concerns of the ally as a warning that he could as well not respect their security concerns. In such a case, these partners could decide to withhold critical intelligence from the U.S. and never even tell us. Thus, in sharing the ally’s intelligence with the Russians, the president may have achieved his goal of getting the Russians to increase their fight against ISIS and terrorism but have lost the U.S. access to anti-ISIS intelligence collected by this ally. We can only hope the president did the cost-benefit analysis before he shared the intelligence.

It is difficult to see how the president’s sharing of classified information with foreign government officials during an official bilateral meeting in a non-public setting at the White House would declassify that information. Such an argument is not only contrary to case law, but ignores the day-to-day sharing of intelligence and other sensitive information between countries. 

It is worrisome, however, the president’s referring to a duty of his office to an “absolute right.” While the reference to an “absolute right” is likely nothing more than imprecise wording, the possibility it could reflect a view that the powers and duties of a Constitutional office are rights of the incumbent, rather than responsibilities to the American people, is concerning.

A right can be defined as “something to which one has a just claim,” or more specifically, “[1] a power, privilege, or condition of existence to which one has a natural claim of enjoyment or possession; [2] a power, privilege, immunity, or capacity the enjoyment of which is secured to a person by law one’s constitutional rights; or [3] a legally enforceable claim against another that the other will do or will not do a given act.”

The first example of a right does not apply, because the president does not have a natural claim to any power, privilege, or condition of existence. There are certainly historical examples of monarchs or emperors who claimed a natural or divine rule that vested them with rights superior to the governed, and that their will and word were absolute.  For instance, the first sentence of the Magna Carta begins with, “John, by the grace of God, king of England, lord of Ireland, duke of Normandy and Aquitaine, and count of Anjou.” The president of the United States, however, may make no such claims.

The Declaration of Independence contains the principles of governance upon which United States was founded: the “self-evident” truths that all persons are created equal and endowed with “certain inalienable rights;” that people institute governments to secure these rights; and that such governments derive “their just powers from the consent of the governed.” The Declaration of Independence concedes no special or superior rights, inalienable or otherwise, to the governing. The president is elected by the people to a limited term in office, providing no support for a claim that nature or the divine chose him to be the president and endowed him with any power, privilege, or condition of existence.  The president may exercise only those powers given by the people, and only for the purposes those powers were given, and subject to the checks and balances of the Constitution. 

Federalist Paper No. 69 by Alexander Hamilton recognized two important factors that hedge against a president misusing his Constitutional powers, “first, a due dependence on the People; secondly, a due responsibility.” These two factors show the president is dependent on and responsible to the people, rather than the other way around. 

The above is purely a theoretical discussion since, neither President Trump, nor any administration office speaking on his behalf, has even suggested such a claim.

The second example of a right does not apply, because the Constitution does not recognize or create any rights for incumbents of executive, legislative, or judicial positions. In fact, the Constitution uses the word “right” only once, in Article I, Section 8, Clause 8, and that single mention is to not any power, duty, or responsibility assigned to the Congress, the president, or the judiciary. Rather, the Constitution uses the word “right” only in the context of giving Congress the authority to protect intellectual property rights: “The Congress shall have the Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”  The Amendments to the Constitution, on the other hand, and in particular the Bill of Rights, are replete with references to the rights of individuals that are not to be infringed by the government.

The third example of a right provides some basis for the president’s remark. That is, the Constitution’s designations of the president as the chief executive and commander in chief means that the president is empowered to determine what classified information may be shared with which foreign governments. Thus, he arguably could state that as between the three branches of government, the Constitution gives the authority to classify and share information to the president. That power is not absolute, however, as the Congress clearly has some national security powers as well, and the president is supposed to exercise the power to meet his Constitutional responsibilities to the American people, not for any other purpose. The third example, however, may fall short of supporting a claim to an “absolute right” since it is not clear the courts would enforce his claim that any Congressional efforts to place constraints on his ability to share intelligence with the Russians would be unconstitutional.

Almost certainly, the president did not intend his choice of words to convey a sense of personal entitlement to the powers of the presidency. Yet, we should not simply accept his words without exploration since we would be negligent caretakers of our rights if we accepted without comment such presidential statements. The president has not been entrusted with powers to exercise as a matter of right; he is a temporary trustee of these powers and is expected to exercise them exclusively for the benefit of the people. Thus, the power of the presidency is not an “absolute right” of the president, but rather a responsibility to the American people.

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