There has been a great deal of debate and consternation surrounding how the Administrative State has boxed in President Trump through the use of the Mueller/Weissman counterintelligence probe, authorized by Rod Rosenstein, where President Trump is a target of the investigation.
A widely held supporter perspective is that President Trump can expose the fraudulent origination of the counterintelligence investigation; of which he is now a target; if he were to declassify a series of documents as requested by congress and allies of his administration. This approach would hopefully remove the sword of Damocles.
Because the issues are very complex, we begin a two-part CTH post to outline the issues and hopefully clarify the situation; as well as outline a possible solution that would minimize the risk. This is part I.
The core issue within the debate surrounds two contradictory reference points: (1) President Trump has ultimate declassification authority. (2) Yes; however, in this example President Trump is also the target of the investigation; so declassification could be viewed by elements within the investigation as ‘obstruction’. Both of these points are true.
Also true is the reality that both laws and politics come into play.
In November 2018 President Trump gave an interview where he discussed the situation as it is visible to him. Democrats and opposition, writ large, are working earnestly to remove him from office. Obviously President Trump is aware:
New York Post – In a wide-ranging, exclusive interview with The Post, President Trump said Wednesday that if House Democrats launched probes into his administration — which he called “presidential harassment” — they’d pay a heavy price.
“If they go down the presidential harassment track, if they want go and harass the president and the administration, I think that would be the best thing that would happen to me. I’m a counter-puncher and I will hit them so hard they’d never been hit like that,” he said during a 36-minute Oval Office sitdown.
The commander-in-chief said he could declassify FISA warrant applications and other documents from Robert Mueller’s probe — and predicted the disclosure would expose the FBI, the Justice Department and the Clinton campaign as being in cahoots to set him up.
“I think that would help my campaign. If they want to play tough, I will do it. They will see how devastating those pages are.”
But Trump told The Post he wanted to save the documents until they were needed.
“It’s much more powerful if I do it then,” Trump said, “because if we had done it already, it would already be yesterday’s news.” (read more)
So President Trump is aware of the material that he can use to defend himself from the ongoing ‘impeachment’ plans of Nancy Pelosi and Chuck Schumer.
However, President Trump is also seemingly aware of the issues within the process to gain access to the material and actually use it. This is where the concentric circle of lawyers around the Office of The Presidency come into play.
We have the constitution, we have laws, and we have politics.
Moving forward there are three background threads that are critical to understanding how this process has unfolded so far:
- The Declassification Conundrum.
- Understanding the Ramifications of President Trump as a target.
- Understanding how intelligence is compartmented.
All three of these issues come into play. Unfortunately, if you have not already invested the time in those three aspects it is easy, very easy, to get lost.
Because none of the legal linquistics take into account the reality of the actual process for declassifying information, many people get stuck thinking President Trump has sole authority to classify and declassify intelligence without understanding the process.
Declassification of intelligence is a process, and each person -within the executive branch- inside the process must agree to the process. Making the process even more riddled with issues is the reality that President Trump is a target in a counterintelligence investigation. President Trump is being investigated by Mueller to see if he is under the direct or indirect influence of a foreign power. [In this example, Russia]
The Mueller probe is an originating counterintelligence investigation that ‘can find’ espionage (see Russian indictments) as well as violations of law (Papadopoulos, Manafort, Flynn).
It is critical to remember, the originating probe is not a criminal probe; but Mueller and Weissmann can charge criminality if the investigators encounter interference of their counterintelligence probe; these are the process crimes (perjury, obstruction, lying to congress); or if the probe uncovers direct criminal activity (tax evasion, money laundering, FARA violations etc.).
Moving foward…. Technically President Trump can declassify anything. However, it is also true that technically POTUS doesn’t actually declassify anything. The Office of the President asks for a document to enter into a declassification review process.
Officials within that process (ODNI, DoD, DoS, FBI, DOJ-NSD, CIA, NSA, etc), based on their unique relationship to the interests within the document(s), can approve or refuse to sign-off based on their specific intelligence interests. This is where compartmented intelligence comes into play.
Any officer who refuses the request for declassification must justify to the intelligence hub; the Office of the Director of National Intelligence (ODNI, Dan Coats). The executive branch intelligence official tells the ODNI (Dan Coats) why they, their unique interests, cannot approve of the declassification request.
DNI Dan Coats then informs POTUS why the document is not cleared for declassification.
If he disagrees with the decision of the intelligence official, POTUS then would have to fire, replace and hope the next person in the chain-of-command would sign-off. Given the nuance in the current example, and considering the President is under a counterintelligence cloud it is unlikely any officer would break ranks.
President Trump would have to fire people, and keep firing people, until he gets to a person, inside that specific agency, who will comply. Now stop and be reasonable.
Think about the general political ramifications to that decision. And then think about the ramifications against the reality that President Trump is a target, under the cloud of a counterintelligence probe.
Walking through an example: The congressional request is for President Trump to declassify and release the Carter Page FISA applications (including specifically pages 10-12 and 17-34 and relevant footnotes), all of the Bruce Ohr 302s and other relevant documents, including exculpatory evidence regarding Carter Page and others, that were presented to the Gang of Eight, but not presented to the FISA Court. This would include the “EC” or electronic communication from Brennan (CIA) to Comey (FBI) that started Operation Crossfire Hurricane in July 2016.
Let’s just take the FISA application(s).
President Trump asks DNI Dan Coats (intelligence hub) to coordinate the declassification of the FISA warrant application against Carter Page. Dan Coats then asks all of the compartmented principles with interest in that specific document. That likely includes DOJ (Matt Whitaker), FBI (Chris Wray), and likely DoS (Mike Pompeo – because of the State Dept aspect to Chris Steele).
If FBI Director Christopher Wray refuses to declassify the document(s) because it is part of the current Mueller counterintelligence probe, of which Carter Page was a target, then President Trump would have to fire Chris Wray; and, while awaiting a replacement (confirmation seriously doubtful), the request then falls on FBI Deputy Director David Bowdich. [Who would also likely refuse]
As this hypothetical declassification example is unfolding you can imagine the political damage being carried out. Hopefully, you can also see how President Trump could easily be accused of interference or obstruction of justice.
Two scenarios: (1) If the Mueller probe is ended, Chris Wray has no excuse and would likely have to comply with the request. (2) If POTUS is already in the ‘impeachment’ process for obstruction, that references back to his original NY Post statement.
Unfortunately under the second scenario if the Pelosi/Schumer plan is already underway; regardless of the Mueller probe, POTUS could still face executive officer refusals.
Hopefully everyone can see the larger issues.
That’s the worst case scenario; the bad news. However, in Part II I’ll explain an approach that President Trump *could* follow regardless of the time frame.
Actually, unless President Trump has confidence (prior assurances) that Mueller and Weissmann will not provide impeachment fuel, the next outline will show how it could be better for him to counter-punch now while the Mueller probe is ongoing.