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1/ I unfortunately lack the time to weigh in properly on the whistleblower complaint which, says the NYT, “involves a commitment that Mr. Trump made in a communication with another world leader, according to a person familiar with the complaint.” So here are too-brief reactions.
2/ Bob Litt notes Clinton’s claim (reiterated by Obama) that the Whistleblower statute “does not constrain [the president’s] constitutional authority to review and, if appropriate, control disclosure of certain classified information to Congress.”https://www.lawfareblog.com/unpacking-intelligence-community-whistleblower-complaint …
3/ As Litt also notes, Obama in a related whistleblower context preserved the right to “not disclose privileged or otherwise confidential law enforcement information.” These are standard executive branch positions over many administrations and they should control here.
4/ More generally, it cannot be constitutional for a statute to give an NSA employee monitoring intercepts (or whatever) the authority to disclose to Congress the classified communications of POTUS with a foreign leader.
5/ The president’s power to act in confidence is at its absolute height when he has a classified conversation with a foreign leader.
6/ This isn't a defense of Trump, it's a defense of the presidency. Imagine next POTUS is one you like. That POTUS cannot conduct foreign policy if his or her controversial secret foreign policy communications can be disclosed at the determination of an intelligence employee.
7/ Putting it brutally, Article II gives the president the authority to do, and say, and pledge, awful things in the secret conduct of U.S. foreign policy. That is a very dangerous discretion, to be sure, but has long been thought worth it on balance.
8/ Trump has been challenging this principle, in various guises, for almost three years. He has shown time and time again the extent to which our constitutional system assumes and relies on a president with a modicum of national fidelity, and decent judgment, and reasonableness.
9/ So what is to be done? Imagine that Trump engaged in an act of national treachery: he casually blew a source for no good reason (or a venal one), or he betrayed the nation in a Manchurian Candidate sort of way.
10/ I don’t think there is a legal avenue to correct such a betrayal of national trust by the Chief Executive and Commander in Chief. That is one of the accommodations the Constitution makes for the benefits of a vigorous presidency who can conduct foreign policy in secret.
11/ I think the remedies are political and personally risky. If the IG or the USG employee believes the president has engaged in an act of national treachery, they can leak the information, which is a crime, and suffer the consequences.
12/ I don't recommend that course of action. But I do think that unless what Trump did rises to the level of objective betrayal that such an act of disobedience would be warranted and justifiable and forgivable, then whatever Trump did should remain within the executive branch.
13/ These are super-hard problems, but I fear that the attacks on presidential secrecy here are (in Jackson’s words) “confusing the issue of a power's validity with the cause it is invoked to promote, of confounding the permanent executive office with its temporary occupant.” END
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