Legal Analysis

Wash Po’s ‘DO NOT CONGRATULATE’ Sources Likely Broke the Law by Leaking Classified Info

Everyone is talking, it seems, about what President Donald Trump said on the phone to Russian President Vladmir Putin after Putin was re-elected. It’s almost as if a high school quarterback called a girl on the field hockey team to ask her to the prom and invited everyone else to listen in. Those who listened were poised to relish in the joy of a “yes!” or to relish in the awkwardness of a “no!”

Trump talked about congratulating Putin during the call on television. The congratulation is noted in the official public record of the call. Press Secretary Sarah Huckabee Sanders talked about whether the congratulation was appropriate in her press briefing. The real awkwardness came when the Washington Post reported that the president was told, in all capital letters, “DO NOT CONGRATULATE.” That tip — or warning — or whatever — reportedly came during Trump’s national security briefing. If it is true, Trump didn’t abide by it, and double-tweeted his reason for doing so:

The reason for the congratulation — or whether it was wise — is a matter of politics. As a matter of law, whomever leaked the information to the Washington Post appears to have leaked classified information and, therefore, broken the law.

Washington, D.C. Attorney Bradley P. Moss, who practices in the areas of national security, federal employment, and security clearance law, tells Law&Crime that two Federal statutes are implicated by the leak. The first, 18 U.S.C. § 1924, deals with the unauthorized removal and retention of classified information. The second, 18 U.S.C. § 793(d), deals with the gathering and transmitting of information which relates to national defense.

“Anything memorialized in writing as part of briefing notes, bullet points or guidance for a presidential call with a foreign government leader is almost certainly classified,” Moss explained to Law&Crime.

It is not relevant where “DO NOT CONGRATULATE” might fall in the chain of classification. Clearly, some secrets are bigger than others. However, Moss pointed out that “classification level is irrelevant to the question of pure culpability.” In other words, leaking any level of secret breaks the law, no matter how big or small. As long as it’s classified, it cannot be leaked.

“The level of classification of the specific information is dependent upon the circumstances, particularly the sensitivity of the details and/or the methods by which the U.S. government may have come into possession of the information outlined in the briefing materials,” Moss said. Classification level “might be relevant to sentencing but not to whether the leaker violated the [law] itself.”


[Photo by MIKHAIL KLIMENTYEV/AFP/Getty Images]

Aaron Keller is an attorney licensed in two states. He holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University. During law school, he completed legal residencies in the Office of the New Hampshire Attorney General and in a local prosecutor’s office. He was employed as a summer associate in the New Hampshire Department of Safety, which manages the state police, and further served as a summer law clerk for a New York trial judge. Before law school, Keller worked for television stations in New York and in the Midwest, mostly as an evening news anchor and investigative reporter. His original reporting on the Wisconsin murder of Teresa Halbach was years later featured in the Netflix film "Making A Murderer."

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