For the past several weeks I’ve been asking the Trump White House (and nudging other reporters to ask) a simple question:
Since presidents have the power to declassify anything, will President Trump use this power to make public any evidence that exists of Russian meddling in the 2016 presidential election, including whether former President Obama ordered a wiretap on Trump Tower?
So far the White House press office has not responded to my repeated inquiries. However, during the untelevised “press gaggle” this past Monday, NPR’s Mara Liasson engaged in this exchange with White House press secretary Sean Spicer:
LIASSON: You said that you pointed rightly to Clapper’s comments — nothing that he knows of suggests there was any collusion between the campaign and Russia. But he also said that he didn’t know of any wiretap FISA order. … The thing I’m asking is that the President of the United States has unilateral authority to declassify anything that he wants. He said in his tweet, I just learned of this. So he obviously had some kind of evidence. Why not declassify it?
SPICER: I think that’s — as I have made clear, there’s a reason that we want Congress, the intelligence committees to do their job in terms of making sure that there’s a separation of powers.
LIASSON: He’s afraid it would look like interference?
SPICER: I think that, again, I’m just going to leave it at that he thinks it’s appropriate for Congress to do this instead of trying to point to his own Department of Justice.
Notably, Spicer did not take Liasson’s invitation to claim a potentially legitimate reason not to declassify wiretap evidence: that Trump did not want to appear to interfere with an ongoing investigation. Of course, if Spicer had agreed, it would have brought up innumerable other issues. For instance, if there is an ongoing investigation involving Trump wiretaps, that would be so politically explosive the Justice Department would have little choice but to appoint a special prosecutor. Moreover, Trump can’t claim to be concerned about interfering in a current investigation when he already convicted Obama on Twitter for being as bad as Nixon during Watergate.
So what was Spicer saying? How exactly would a concern over the constitutional separation of powers prevent Trump from declassifying evidence of Obama wiretapping him? I’ve asked the White House press office to clarify this, but so far they have not gotten back to me.
Several legal experts with relevant government experience were as stymied as I was by Spicer’s claim.
Todd Hinnen, a former acting assistant attorney general who oversaw the Justice Department’s counterintelligence branch during part of the Obama administration, explains that it is in fact the executive branch’s job to investigate claims like Trump’s. While “there is, in theory,” says Hinnen, “nothing wrong” with Congress engaging in its own concurrent investigation, there is no reason why concern for separation of powers should stop Trump from declassifying anything. So, Hinnen believes, “this isn’t so much respecting the separation of powers as it is abdicating responsibility for the executive branch, which the president now heads.”
Laurence Tribe, a famed professor of constitutional law at Harvard Law School, Justice Department official during the Obama administration, and now vociferous Trump critic, goes further. “What Sean Spicer said about the separation of powers made no sense at all,” Tribe believes. “The separation of powers provides no justification for saying that Congress rather than the president should investigate” Trump’s assertions.
“If anything,” says Tribe, “it seems contrary to the separation of powers for oversight committees of the legislative branch to poke around into alleged executive malfeasance outside the context of an impeachment inquiry or an inquiry into what kind of law to enact in order to reduce the risk of such malfeasance.”
Meanwhile, several politicians and many journalists have started discussing whether Trump should use his declassification power to cut through the Gordian knot of the wiretapping issue.
Most significantly, Nebraska Republican Sen. Ben Sasse released a statement on March 4 saying that if the Foreign Intelligence Surveillance Court did in fact authorize surveillance of Donald Trump’s associates, Trump “should ask that this full application regarding surveillance of foreign operatives or operation be made available, ideally to the full public.” Sasse was first elected in 2014 and is one of the most prominent Trump critics in the Republican Party.
Another Republican, Utah’s Rep. Chris Stewart, said Monday on the CNN show Outfront that “if the president has information [about Trump Tower being wiretapped] and he could declassify that without endangering national security, I would encourage him to do that.” Stewart is a member of the House Intelligence Committee, which the White House has asked to investigate Trump’s allegations.
Stewart was responding to a question from host Erin Burnett: “If a request to wiretap him came as he alleges from the Obama White House, he has the ability to declassify that request. … Why isn’t he declassifying it and letting us all see the classified information?”
The same day, Utah Republican Rep. Jason Chaffetz agreed with CBS’s Norah O’Donnell that “[Trump] can declassify” a FISA warrant, although he declined to say whether he would call on Trump to do so.
On Tuesday, speaking on CNN, Alice Stewart, the communications director for the Mike Huckabee and then Ted Cruz presidential campaigns last year, strongly endorsed the idea of Trump declassifying any relevant information.
On Wednesday, Democratic Sen. Ron Wyden of Oregon, who serves on the Senate Intelligence Committee, explained to CNN’s Dana Bash that “the president has very extensive authority to declassify matters. … He certainly could move to declassify.” The same day, Trey Gowdy, a Republican from South Carolina best known for chairing the congressional select committee on Benghazi, told Anderson Cooper that “the president has the power to both declassify it and to have it released,” although he noted that “it also could impact an ongoing investigation. So, there may be a DOJ reason that they don’t want to share it with Congress.”
Other journalists who made the same point about Trump’s declassification powers this week include CNN’s Wolf Blitzer, Jake Tapper, Dana Bash, Poppy Harlow, Tal Kopan, Jackie Kucinich, Paul Begala, Gloria Borger, Jeffrey Toobin, and Tom Fuentes; Washington Post Assistant Editor David Swerdlick; conservative radio host Buck Sexton; and ABC chief legal analyst Dan Abrams.
Finally, in an editorial this week, the conservative Weekly Standard pushed for the declassification of relevant material regarding Trump’s claims, saying that the government should embrace “radical transparency”:
We see only one way out of this crisis: The truth. FBI Director Comey needs to say what happened and produce the relevant FISA warrants and requests, if there were any. … The normal caution about impeding existing investigations or even many concerns about sources and methods need to yield to the requirements of civic health. Sunshine is not only the best disinfectant, it is in this case the only possible disinfectant.
Below is a list of my attempts so far to get the White House press office to address this general issue:
Wednesday, February 15: Email to Lindsay Walters, White House deputy press secretary, asking for comment for this article. Walters did not respond.
Friday, February 17: Phone call to White House press assistant Giovanna Coia, who directed me to email Walters and principal deputy press secretary Sarah Sanders.
Friday, February 17: Email to Walters and Sanders specifically requesting an interview with Trump or anyone else available. Sanders responded with email cc’ing senior assistant press secretary Michael Short and asking him “to handle.” Short did not respond.
Sunday, February 19: Follow-up email to Short. He did not respond.
Tuesday, February 21: Follow-up email, call, and text to Short. He did not respond.
Friday, February 24: Follow-up email to Short. He did not respond.
Saturday, March 4: Text to Short and email to Walters, Sanders, and Short requesting comment for this article specifically about Trump’s ability to prove his Twitter claims. No response.
Friday, March 10: Text to Short and email to Walters, Sanders, and Short requesting clarification of Spicer’s statement for this story. No response.