Was it illegal to store Trump’s Ukraine call on a secret government server?

Congress is marching forward with its impeachment inquiry. The focus is President Trump’s request that Ukrainian prosecutors investigate former Vice President Joe Biden, and his son Hunter, in possible exchange for Trump’s release of nearly $400 million in aid pledged by Congress to help Ukraine’s burgeoning democracy stave off Russian aggression.

The legal implications of this latest chapter in foreign assistance in Trump’s presidential campaigns are deeply serious, implicating a host of potential crimes, including federal campaign finance violations, bribery, extortion, obstruction of justice and bans on foreign lobbying.

A second act in this drama is a stunner in its own right. According to the whistleblower complaint over Trump’s now-infamous July 25 phone call with Ukrainian President Volodymyr Zelensky in which Trump made the “ask,” White House lawyers allegedly buried records of the call in a highly classified “super secret” server reserved for information regarding covert operations and other sensitive intelligence actions.

According to reporting by the New York Times, not all National Security Council (NSC) officials have access the special computer software required to penetrate the secret server, and “in extreme cases, agency aides must physically enter the offices of the intelligence directorate to read documents stored in the system.” Records of presidential phone calls within foreign leaders rarely belong in there.

But why should we care about how these categories of information is stored in the first place?  

Congress established the NSC as an independent agency in 1947 under President Harry Truman. Its members currently consist of the president along with the secretaries of State, Defense, Army, Navy and Air Force, as well as others who serve at the president’s discretion with Senate approval. The NSC’s job is to provide advice and coordination for the president on national security matters relating to domestic, foreign and military policies. The NSC doesn’t decide what to do about national security policy — it makes recommendations, and the president makes the calls. The statute creating the NSC also created the CIA.

To understand the gravity of the information gathered and disseminated amongst NSC members, one need only look at the minutes of the very first NSC meeting held in Washington in September 1947. Discussion topics included “Review of the World Situation as it Relates to the Security of the United States.”

Just months earlier, in March 1947, Truman delivered a speech before a joint session of Congress announcing what became known as the “Truman Doctrine,” which reoriented American foreign policy toward intervening in conflicts in light of increased tension with the Soviet Union.

The NSC does important stuff, and it’s important to American foreign policy, national security and the annals of U.S. history that careful, legitimate record-keeping be scrupulously maintained.

So, to repeat today’s stunner: The whistleblower complaint states that federal government lawyers took steps to shield the existence of Trump’s July 25 call from Congress and the public by sticking it in a super-secret server, where it was unlikely to see the light of scrutiny. It doesn’t take a legal expert to conclude that the maneuver smells of a political coverup.

Keep in mind, too, that in 2004, Congress passed another law creating the Office of the Director of National Intelligence (DNI). That office was supposed to forward the whistleblower complaint to Congress — but that handoff was stymied when the Department of Justice intervened with a spurious legal analysis for bypassing an unambiguous legislative mandate.

Was all of this legal?

The short answer to the question is, probably yes — with Trump’s authorization. Under Executive Order 13526 (Dec. 29, 2009), the president and vice president both have the authority to classify and declassify material. That said, the order, signed by President Obama, explicitly states that material may not classified or suspended from declassification if done, in pertinent part, in order to:

• “conceal violations of law, inefficiency, or administrative error”
• “prevent embarrassment to a person, organization, or agency” 
• “prevent or delay the release of information that does not require protection in the interest of the national security”

Classifying records of the June 25 call arguably violated all of these prohibitions. As noted above, the phone call and surrounding circumstances could give rise to criminal violations, which the White House worked to conceal.  The server-stuffing appears to be done to avoid embarrassing Trump and/or to hide the July 25 call without a national security rationale.

Executive orders occupy a bizarre corner of constitutional law. They can function as directives to execute the law — which is squarely within the scope of presidential power — or they can entail presidential legislating. Legislating is Congress’s job under Article I. The Constitution does not expressly authorize executive orders, but presidents have issued them since the dawn of the republic. Executive orders are thus functionally treated as laws regardless of the Constitution’s silence around them. Arguably, Trump and his staff were bound by this one unless and until Trump himself issued a new executive order that supersedes Obama’s.

But once again, this is a quandry for which the Constitution provides no clear answers. The question isn’t whether this second act in the all-things-Ukraine play was legal, but whether our system of government imposes consequences for breaches of the norms of legitimacy and public service that shore up agencies like the NSC in the first place. Without consequences for violating laws and norms, the laws and norms themselves — including, for that matter, the Constitution itself — become meaningless.

NOTE: This post has been updated from the original to correct the acronym NSC.

Kim Wehle is a former assistant U.S. attorney and a former associate independent counsel in the Whitewater investigation. Wehle is also a professor at the University of Baltimore School of Law. She is the author of “How to Read the Constitution and—Why.” Her next book, “What You Need to Know About Voting—and Why,” is forthcoming with HarperCollins in July 2020. Follow her on Twitter @kim_wehle.