Time for the defense secretary and the administration to own up and show they’re taking curative measures.
In my earlier post debunking Trump officials’ suggestions that the commercially available Signal encryption app is permissible for classified communications, I analogized Signal to the public portion of a congressional intelligence committee hearing. I also said I’d post separately about another bit of administration legerdemain: the claim that patently classified communications were not classified. That brings to mind another analogy — a favorite tactic of defense lawyers in criminal trials.
It involves a doctrine of evidence law: Episodes of innocent conduct are not admissible to try to prove that the accused did not commit the offense actually charged. What it means in the context of the Signal controversy, specifically with respect to Defense Secretary Pete Hegseth, is that just because you can conjure up a few worse things that you didn’t do doesn’t mean you didn’t do the bad thing you’re accused of doing.
Common sense, really. Let’s say a bank manager is charged with embezzlement — i.e., his position gives him authorized access to the banks funds, but he illegally converts the funds to his own use. We sometimes loosely refer to that as “robbing the bank,” even though, technically, covert theft is not the same as robbery (the latter is a taking by force or threat of force).
At the embezzler’s trial, the defense lawyer wants to adduce evidence from which the lawyer can argue, “There was no ski mask, no gun, no threat to a frightened teller, no getaway car, and no robbery.” It’s a straw man: Set up something that’s not alleged and can be easily disproved so you can try to look impressive — even indignant — knocking it down.
But good judges don’t let defense lawyers do this. It’s a stratagem to confuse the jury about the charges. The accused is charged with embezzlement; the fact that he didn’t commit armed bank robbery — and all the acts that are usually attendant to armed bank robbery — doesn’t prove that he is innocent of embezzlement. And of course, the fact that the defense wants to talk about all sorts of bad activity that the case is not about is a sure sign that it is trying to distract the jury’s attention from the bad activity that the case is about.
This is what the administration is trying to pull off regarding Defense Secretary Hegseth’s disclosure of patently top secret information on the Signal chat. We saw this riff in Hegseth’s ill-advised social-media post on Wednesday, in which he inveighed that he had revealed “No names. No targets. No locations. No units. No routes. No sources. No methods,” and then concluded that this meant he had revealed “no classified information.” White House Press Secretary Karoline Leavitt echoed this mantra, insisting that “nobody texted war plans” and — because the president said so — that there had been disclosure of classified information. In her congressional testimony on Wednesday, National Intelligence Director Tulsi Gabbard read off the same script: “No sources, methods, locations, or war plans,” just a “standard update to the national security cabinet,” that no-way no-how included classified information.
This sleight of hand is indistinguishable from the Obama administration’s defense of Hillary Clinton’s illegal use of a home-brew server to transmit emails that occasionally involved classified information. President Obama and his aides stressed that Secretary Clinton hadn’t intended to harm national security. But no one was accusing her of that; she had handled national defense intelligence in a grossly negligent manner, which is a different offense. Obama officials harped on the bad thing she didn’t do, however, in hopes of diverting attention from, and minimizing the significance of, the misconduct actually at issue.
Signal is not authorized for classified communications. Yet, in the chat at issue, Hegseth communicated operational details about imminent U.S. military strikes, including information about high-value targets (e.g., “Target Terrorist is @ his Known Location”; “Trigger Based targets”). He disclosed the exact times when strikes would commence and their sequencing, including the fact that there would be at least two “strike packages.” He asserted that the Defense Department believed “OPSEC” (operational security) had been maintained — which, as Mark Wright points out, is itself “prima facie classified” information.
That is what’s alleged because that’s the written record of what he did, and Hegseth has not disavowed authorship of the texts in question.
No one is claiming (at least based on what’s been revealed so far) that Hegseth revealed the names of sources of intelligence or the exact addresses of targets, or that he identified the precise military units that would take part in the operation. The assertion that he didn’t reveal “methods” may be true enough if that narrowly means intelligence-collection methods, but it’s misleading because he undeniably referred to military methods (e.g., “THIS IS WHEN THE FIRST BOMBS WILL DEFINITELY DROP” [caps in original]).
The refrain that Hegseth did not disclose “war plans” is just factitious semantics. It appears to stem from The Atlantic’s original sloppy assertion that Hegseth had divulged “war plans,” which it later accurately edited to “attack plans.” Of course, no one claims that we are at war with the Houthis in the sense of a conflict in which Congress has declared war or authorized combat operations; but the commander in chief incontestably ordered an attack on them. The controversy is over Hegseth’s disclosures about the attack in the critical two hours before it happened — disclosures, again, that included not only the timing of imminent strikes but also the weapons that would be used. Some of those descriptions (e.g., “Tomahawks”) necessarily conveyed the kinds of naval assets our forces had in the vicinity of the Houthis’s havens.
This was top secret classified information, as that term is defined in the governing executive order (EO 13256) and the Classification Guide generated by Director Gabbard’s own Office of National Intelligence (see p.36, §3.4.3, classifying as “TS” (top secret) “information providing indication or advance warning that the US or its allies are preparing an attack”). It is not a defense to the unauthorized disclosure of such information that it could have been even worse than it was, or that Hegseth is not guilty of things no one is accusing him of.
It isn’t that long ago that President Trump, in 2019, was incensed because then-AG Bill Barr declined to prosecute Jim Comey, the former FBI Director and Trump nemesis, for leaking government reports that the FBI later determined included a minor amount of lowest grade classified information. Like Hegseth, Comey insisted that what he’d written in the reports was not classified information; but it was determined to be classified post-hoc because it fit the definition in the guidelines. That is what matters — as opposed to the self-serving excuses habitually offered by officials caught saying things they shouldn’t have said, at least in the settings in which they said them.
Barr made the right call. Comey didn’t deserve to be indicted, proving criminal intent would have been uphill, and the prosecution would have appeared selective. I don’t think Pete Hegseth deserves to be prosecuted either. He has been a patriotic warrior, putting his life on the line for our country. Moreover, he deserves credit for advocating a critical mission against the Houthis, which was executed flawlessly and helps restore deterrence, a vital American interest.
That said, this was an enormous screw up. Hegseth’s credibility is taking a bad enough hit. He needs to stop making things worse by obfuscating. That can only convey to Congress and the public that he fails to grasp the significance of the breach. A Defense Secretary not only has to follow the rules himself; he has to enforce them in his department. How can we be confident he’ll do that if he doesn’t recognize blatant misfeasance? So c’mon: Own up, take public steps to insure it doesn’t happen again, and move on — by tomorrow this will be overtaken by five new Trump dramas.
Back in 2019, the president groused that Jim Comey “got lucky” when the classified information breach that he had vehemently denied was excused. It is simply a fact that what Pete Hegseth disclosed was much more sensitive information. He’s lucky — we’re all lucky — that things didn’t turn out worse.