September 30, 2019

Don't Forget the Cover-Up(s): On Trump's Abuse of the Executive's Secret-Keeping Powers

Heidi Kitrosser Robins Kaplan Professor of Law, University of Minnesota Law School, and Newton N. Minow Visiting Professor, Northwestern University – Pritzker School of Law

This blog is one in a series of blogs in a symposium examining different legal aspects of the impeachment inquiry of President Trump. View the entire Impeachment Blog Symposium.

In Federalist 65, Alexander Hamilton described impeachment as directed toward “the abuse or violation of some public trust.” It is hard to envision acts more squarely within that definition than those that entail leveraging the awesome powers of the presidency solely for the president’s own personal or political gain. A number of commentators have argued – convincingly, in my view – that the President’s efforts to pressure Ukraine to take actions harmful to a political rival may well constitute such an abuse. In this post, however, I wish to focus on a related issue that is also shaping up to be part of the House’s impeachment inquiry: President Trump’s misuse of the executive’s secret-keeping tools to keep Congress and the American people in the dark about his actions toward Ukraine. As I explain below, the House of Representatives must include in its impeachment inquiries at least two such abuses: First, the President’s alleged misuse of the classification system to hide records of his communications with world leaders in order to protect himself personally and politically, and second, the President’s possible role in attempting to keep the August 2019 whistleblower complaint from the congressional intelligence committees and to intimidate the whistleblower, his or her sources, and other potential whistleblowers. Finally, should the House include these transgressions in one or more articles of impeachment, they would be wise to situate them within President Trump’s broader pattern of abusing the executive’s vast secret-keeping powers not to protect the national interest, but to keep from the American people and their representatives information that might embarrass him or otherwise harm him personally.

To find a potential abuse of the classification system, we need look no further than the now-famous whistleblower complaint. After describing the July 25th phone call between President Trump and Ukrainian President Volodymyr Zelensky, the whistleblower recounts having been told by White House officials that White House lawyers directed them to “remove the electronic transcript [of the call] from the computer system in which such transcripts are typically stored.” Instead, writes the whistleblower,


the transcript was loaded into a separate system that is otherwise used to store and handle classified information of an especially sensitive nature. One White House official described this act as an abuse of this electronic system because the call did not contain anything remotely sensitive from a national security perspective.


White House officials also told the whistleblower that “this was ‘not the first time’ under this Administration that a Presidential transcript was placed into this codeword-level system solely for the purpose of protecting politically sensitive – rather than national security sensitive – information.”

As part of their impeachment inquiry, House members must investigate whether the President himself ordered or encouraged such abuses of the classification system. Such presidential involvement would hardly be a surprise. Readers might recall that, among the earliest targets of President Trump’s wrath toward “deep state” subterfuge, were whoever leaked embarrassing details of his phone calls with world leaders. The New York Times recently reported that these early leaks indeed inspired the White House to curtail access to call records.

Apart from the contents of the whistleblower’s complaint, the President’s reaction to the complaint itself warrants investigation as a possible abuse of power. We know from a now-public recording that the President told a crowd of staff and families of the U.S. delegation to the United Nations that whoever “gave the whistleblower the information” is “close to a spy,” and asked, “You know what we used to do in the old days when we were smart? Right? With spies and treason, right? We used to handle them a little differently than we do now.” Although this could be written off as Trump’s trademark political bluster, it could also be seen as part of a larger attempt to intimidate the whistleblower, his or her sources, and future whistleblowers. This is particularly so when the statement is considered alongside Trump’s many other efforts throughout his presidency to intimidate potential whistleblowers.

In probing the President’s response to the whistleblower complaint, it is also essential that House members determine what role, if any, the President played in trying to circumvent the requirements of the Intelligence Community Whistleblower Protection Act (ICWPA) to keep the complaint from the congressional intelligence committees.  As the (Acting) Director of National Intelligence (DNI) himself concluded, the whistleblower followed the ICWPA’s requirements by presenting his complaint to the Inspector General (IG) for the intelligence community. The IG determined that the complaint was credible and raised an “urgent concern.” Under the ICWPA, the IG was required at that point to transmit the complaint to the DNI. Although the IG did just that, the DNI did not follow the statutory command that, at that point, he “shall, within 7 calendar days . . . forward [the complaint] to the congressional intelligence committees.” Rather, the DNI acknowledges that he brought the complaint to the White House and the Department of Justice. The Justice Department’s Office of Legal Counsel – despite serious questions as to whether it had a legitimate role in this process at all and the selectivity of its analysis – wrote an opinion concluding that the complaint did not state an urgent concern and did not need to be transmitted to members of Congress. Congressional investigators must determine what role, if any, President Trump played in attempting to bypass the ICWPA’s requirements and to keep the intelligence committees in the dark.

Finally, the House should situate any articles of impeachment regarding these abuses within President Trump’s wider pattern of exploiting the presidency’s secret-keeping capacities not to protect the national interest, but to bury information that might harm him personally. The House’s inquiry into classification system abuses to lock down embarrassing phone call records surely will include episodes beyond the Ukraine phone call, given indications that this or similar practices date back to the administration’s earliest days and cover multiple phone calls and in-person conversations. Other possible abuses extend to the administration’s repeated, extraordinarily broad invocations of executive privilege – or even of the possibility that the privilege might at some point be invoked – to block congressional fact-finding, and the White House’s wielding of almost-certainly unenforceable non-disclosure and non-disparagement agreements to threaten employees who might speak to the press. Although these are far from the only examples, they sharply illustrate the President’s broader pattern of abusing his powers to keep damning information about himself from the American people and from those who work for them.

Executive Power, Separation of Powers and Federalism