WASHINGTON >> President Donald Trump is flexing his executive power to declassify secret documents in the Russia investigation, an extraordinary move he says will ensure that “really bad things” at the FBI are exposed. But the decision, made against the backdrop of Trump’s spiraling outrage at the special counsel’s Russia investigation, may expose sensitive sources and methods and brush up against privacy law protections, experts say.
The order is likely to further divide the president from the intelligence agencies he oversees and raises new concerns that Trump is disclosing government secrets for his own political gain. Critics of the move say the president has a clear conflict by trying to discredit an investigation in which he himself is a subject.
“This radical policy choice is not being made on traditional policy grounds. It’s being made on conflicted grounds,” said David Kris, a former Justice Department national security division head. “That’s problematic.”
The Justice Department says it’s begun complying with the order, though it’s not clear when the documents might be released. It’s also unclear if the multi-agency review now underway might find ways to try to withhold certain information or limit whatever damage, such as outing sources or scaring off would-be ones, that may arise from the release.
Trump and Republican supporters want the records out in hopes they’ll reveal law enforcement bias in the early stage of the Russia investigation and prove the probe was opened without good reason.
Democrats say the material is too secret for disclosure and object to any meddling in an ongoing investigation.
In a letter today to Director of National Intelligence Daniel Coats, Deputy Attorney General Rod Rosenstein and FBI Director Christopher Wray, four top Democrats called Trump’s action “a brazen abuse of power.”
The letter said, “Any decision by your offices to share this material with the President or his lawyers will violate longstanding Department of Justice policies.” It was signed by House Democratic Leader Nancy Pelosi, Senate Democratic Leader Chuck Schumer, and the top Democrats on the House and Senate intelligence committees, Adam Schiff and Mark Warner.
The documents the president ordered declassified include a portion of a secret surveillance application for a former Trump campaign adviser, materials by default treated as highly secret and withheld from public view.
Trump appeared unconcerned today by the national security implications of the order, tweeting about a supportive congressman and saying, “Really bad things were happening, but they are now being exposed. Big stuff!” At the White House he said he wants “total transparency,” insisting again that the Russia investigation is a “witch hunt.”
In this case, the materials may shed new insight into why federal agents suspected the aide, Carter Page, of being the agent of a foreign power. But it may also identify specific sources of information for the FBI or disclose previously classified information about Russian efforts to interfere with the 2016 presidential election — which remains the center of an ongoing investigation by special counsel Robert Mueller.
“The applications routinely will contain critically sensitive details about the methods and means by which intelligence investigations gather information, including the identities of sources who may well be endangered if their identity becomes public and who certainly will be dis-incentivized from future cooperation as well,” said Bobby Chesney, a national security law professor at the University of Texas.
Warrants to monitor the communications of a suspected agent of a foreign power are a common tool in counterterrorism and counterintelligence investigations, but they’re applied for before a secret court.
An inspector general may be able to obtain that information during an investigation and a judge may have occasion to review it to settle an evidence dispute, but a target of an application like Page “certainly doesn’t get to look at them,” Chesney said.
The applications are detailed enough to convince a court that surveillance is appropriate, Kris said, so concern that information from them could be disclosed could “strain the system.”
“I don’t mean to suggest that the government will start lying to the court. They have an obligation to be candid,” said Kris, founder of Culper Partners consulting firm. But “to the extent there is discretion at the margins, if the government fears disclosure, particularly disclosure for political reasons, it will strain the system, and that’s not good.”
Monday’s order was extraordinary but not entirely unprecedented.
Trump made a similar move in February when the White House, over the objections of the FBI, cleared the way for the Republican-led House intelligence committee to release a partisan memo summarizing details from the Page warrant. Democrats later countered with their own memo.
Other materials covered by the order include FBI interviews of a senior Justice Department official and text messages of senior FBI leaders, including fired Director James Comey, involved in the investigation.
William Banks, a Syracuse University national security expert, said that by making the information public, Trump is essentially overruling the decisions of career officials intent on keeping it from foreign intelligence services, terrorist groups and other adversaries.
He said while there’s nothing to prevent Trump from releasing the bulk of the information identified by the White House, he may face some problems releasing the Russia-related text messages because of the federal Privacy Act, which governs the type of personal information the government can make public.
“The Privacy Act is a big hurdle here unless Congress takes control of the materials and tries to release them themselves,” Banks said.
The FBI earlier released in heavily redacted format 412 pages of surveillance applications and court orders related to Page. Monday’s declassification order covers 21 pages of a 101-page June 2017 application to renew the warrant — the last of four filed by the Justice Department. His communications were monitored for nearly a year starting in October 2016.
Experts say the president’s authority to unilaterally declassify the records is well-established, though that doesn’t make it less unusual.
Though there are other instances of government officials or contractors spilling government secrets, Chesney said, “What’s remarkable about this is it’s the White House that’s doing it.”