Score at least a half-point for the whistleblower complaint at the heart of Ukraine-Gate. The complaint alleged that “White House lawyers” transferred the transcript of the Trump-Zelensky call to a system used for only the most sensitive material, alleging that the decision was part of a cover-up of Donald Trump’s crimes. This morning the White House acknowledged that the transcript had been indeed moved to more secure storage, but claimed that National Security Council lawyers made that request, not the White House:
In a statement provided to CNN, a senior White House official says it was under the direction of National Security Council attorneys: “NSC lawyers directed that the classified document be handled appropriately.”
The admission lends further credibility to the whistleblower complaint description of how the transcript with the Ukrainian president, among others, were kept out of wider circulation by using a system for highly sensitive documents.
But the statement does not explain whether anyone else in the White House was part of the decision to put the the Ukraine transcript in the more restrictive system.
Here’s the relevant portion of the complaint that details the action:
The transfer was confirmed, which raises questions of its own, but the circumstances are at least disputed. This could be a distinction without much of a difference, of course, as the NSC operates within the Executive Office of the President. It’s a mixture of an advisory and coordinating committee that consists of both the president (who chairs the NSC) and vice president along with Cabinet and military officials. The White House counsel (currently Pat Cipollone) also participates, as does the DNI — currently Joseph Maguire in an acting capacity, although it would have been Dan Coats at the time of the July 25 call.
If Cipollone was among the NSC lawyers directing the transfer — or if Cipollone directed other NSC lawyers to direct the transfer — then it’s a distinction without a difference at all. Even if not, the NSC’s position within the EOP makes them part of the White House more generally, including their lawyers.
This raises a few questions. CNN’s panel raises a couple of them here:
The White House is acknowledging for the first time that officials did direct the Ukraine call transcript be filed in a separate classified system. https://t.co/lLflcHx30g pic.twitter.com/hugwanOjfy
— CNN Newsroom (@CNNnewsroom) September 27, 2019
Was this transfer as unusual as the complaint alleges, or have other transcripts been handled similarly? One point not raised by CNN is whether this particular conversation might have had a very specific issue that required more secure handling. Zelensky’s reference to the Javelin systems might have made the NSC nervous:
That in itself might have warranted a higher security status, as the discussion of Javelin sales to Ukraine was incredibly sensitive at the time — and still is, which is why Zelensky’s none too happy about the transcript release. The Trump administration sold 210 Javelin missiles and dozens of launchers to Ukraine last year, angering Russia, and another sale would be diplomatically touchy, to say the least:
In March 2018, Trump approved the $47 million sale of 210 Javelin anti-tank missiles and 37 launchers to Ukraine. The missiles were the first lethal military assistance provided to Ukraine by the United States in its fight against Russian-supported separatists in eastern Ukraine since that fighting began in 2014.
The U.S. has provided $1.5 billion in security assistance to Ukraine with the majority of it being non-lethal assistance, but Ukraine has also wanted lethal military hardware it can use against the well-equipped Russian separatists.
Since that first sale, U.S. officials confirm that there have been long-running discussions between the U.S. and Ukraine about a future purchase of more Javelins, but nothing has been finalized.
Given that the Javelins would only be useful against Kremlin-backed tanks and armored units in Ukraine’s eastern provinces for offensive operations, that’s not exactly something the US military would want floating around. It could invite Russian retaliation against US units elsewhere, especially in Syria and Iraq. The NSC could reasonably have had a concern about that request and discussion getting too far afield, where it might leak out. That would at least present some justification for keeping that conversation more secure, if arguable in light of the earlier sale. It’s certainly a good reason not to have released the transcript at all.
Finally, the president has plenary authority for classification and declassification decisions. Congress can certainly investigate and criticize those decisions, but it’s not an abuse of power to classify material at a higher level than they like, especially if there are rational reasons for such decisions other than “cover up” of alleged abuses of power. This is thin ground for censure, let alone impeachment, at least unless something else much more significant emerges.
Update: An e-mailer who will remain anonymous raised a good point in rebuttal to the theory that the NSC saw a true nat-sec issue in the transcript. If so, why wasn’t the classification raised as a result? SECRET/NOFORN is actually a middling level for classified information (NOFORN is standard for anything involving presidential activity). Perhaps they just figured that switching the storage location was sufficient, but it might have been more that they thought the conversation was embarrassing and wanted to prevent a leak.