EXCLUSIVE: After he left office, Donald Trump ordered his chief of staff to leak classified information to the press about an FBI agent and other adversaries. Experts believe that may be a felony.

The ex-president may now face even greater legal jeopardy than previously known.

Former White House Chief of Staff Mark Meadows Getty

Earlier stories on the Russia papers: Part 2, Part 1.

Months after he had left office, former president Donald Trump, directed his former chief-of-staff, Mark Meadows to leak highly classified government records regarding Peter Strzok, the former Deputy Assistant Director of the FBI’s Counterintelligence Division, to the press.  In the final days of Trump’s presidency, Meadows had removed the classified files from the White House, which Trump and Meadows believed would discredit Strzok.

The explosive ramifications of such a knowing and willful leak of classified information by Trump, or by someone on his behalf, at his direction, after he left office, is that Trump would have potentially committed a felony.

As president, Trump enjoyed a virtually absolute and unfettered constitutional authority to declassify virtually almost any government secrets he so wished. But once gone from office, Trump no longer had any legal authority or power beyond that of an ordinary citizen to declassify government papers or; much less leak classified records. Any such provision of classified information at that time would be a crime.

Brad Moss, an attorney specializing in national security law, explained to me: “Anything Trump had in his possession that was still classified and that he gave to a reporter or anyone else unauthorized to receive it, after 12:01 pm on January 21, 2021, was unlawful as a legal matter.”

Richard Immerman, an Assistant Deputy Director of National Intelligence during the George W. Bush administration told me: “Once a president’s tenure in office has ended, he or she has no authority to declassify documents. If he does, he’s breaking the law.”

This new issue arises just as special counsel Jack Smith is already conducting a federal criminal investigation to determine whether Trump broke the law by taking hundreds of pages of other classified papers from the White House to his home in Mar-a-Largo when his presidency was over. The Justice Department has also previously alleged in federal court that Trump “likely concealed and removed” classified documents from one place he was keeping them, to another less likely place where they would be found by federal prosecutors and the FBI, with a purpose to “obstruct” their investigation. Smith has also taken charge of the investigation of whether Trump obstructed justice.

As I have previously reported, Smith has questioned a small number of witnesses about Trump’s and Meadows’ mishandling of classified documents related to the FBI’s Russia investigation. But the issue does not appear, at least for now, to be a major focus for the special counsel.

The plan to leak classified and derogatory information to Trump about Strzok was described to me by at least three sources, including two of Trump’s former presidential aides, and a colleague of right-wing journalist John Solomon, to whom Trump had already leaked several other classified documents to in the final hours of his presidency to help Trump in the hopes of discrediting perceived enemies; in this case, the leaders and agents of the FBI who conducted that agency’s investigation of Russia’s covert efforts to help elect him as president in 2016.

A former Trump administration official, in arguing that Meadows had the right to remove a portion of the Russia papers from the White House, and leak them to reporters, once out of office, asserted that they were justified to do so, citing a presidential order signed by Trump, on Jan. 19, 2021, the last full day of Trump’s presidency. Trump said in the order that the Russia papers were to “be declassified to the maximum extent possible.”

However, on the very next day, Jan 20, just prior to Joe Biden taking his oath of office, Meadows wrote a memo clarifying Trump’s order to explain that although Trump had already “declassified certain materials related to the Federal Bureau of Investigation’s Crossfire Hurricane [Russia} investigation,” none of them would be released anytime soon due to objections from the Justice Department and other agencies, who had yet been able to undertake a “privacy act review, under the standards that the Department of Justice would normally apply, redact material approximately, and release the remaining material with redactions applied.”

I spoke to eight former and current government officials, academic experts, and lawyers in private practice, all with vast expertise and experience in government secrecy and classification issues, to ask them if they believed that the Russia papers remained classified after Trump and Meadows left office.  (Some of those I interviewed qualified in more than one of the above aforementioned occupational categories or even all three of those categories.).   The differences in the opinions they hold are in large part due to the fact that the matters at hand are to some degree unsettled in constitutional law and case law. A clear majority, though not all, told me that Trump’s and Meadow’s actions did not legally declassify the Russia papers, that they remained classified, and that then disclosing their contents once out of office, would almost certainly constitute criminal behavior.

Immerman, the former Assistant Deputy Director of Intelligence from 2007 to 2009, is also a retired historian of U.S. foreign relations and intelligence who has taught at the Army War College and Temple University. For a decade he chaired the State Department’s Historic Advisory Committee. He has had decades of practical experience navigating government secrecy and classification issues.

Immerman told me that claims by Trump administration officials that the Russia papers were declassified by Trump and Meadows prior to them leaving office, and thus both men acted within the law, when they offered them to reporters, have no substance.  He told me: “Their explanation is fatally flawed. A document is declassified at the time any material withheld from declassification is redacted—not pending decisions on those redactions. Further, DOJ reviews documents prior to presidential decisions on declassification, not after. I would interpret Meadows’s memo as an effort to retrospectively cover his, or Trump’s tracks.”

Moss, the national security lawyer, like Immerman, told me that the records Trump and Meadows wanted to leak to the press on Strzok remained classified.  Among other reasons, Moss explained: “An actual proper declassification involves a formal process that requires their ‘De-marking,’ the reversing of the markings on the records indicating they were classified. The proper De-marking of these documents would reflect the date of the declassification, the person who declassified them, and the authority on which they acted. That’s what the process requires.” Yet, that was not done in this instance.

Every single one of the eight experts I queried agreed that Trump and Meadows had not followed the protocols and procedures prerequisite to properly declassifying government records—practices codified and promulgated by his own administration.

Brian Greer, an attorney with the CIA’s Office of General Counsel from 2010 to 2018, during the Obama administration, told me: "The classification system was set up on the assumption that the president would be acting in good faith and in the public interest. Unfortunately, that does not appear to be the case here."

People close to Meadows have told me that Meadows will defend himself and Trump against any allegation that either man broke the law, by leaking any of the Russia papers or Strzok documents, by arguing that those records were properly declassified. Extraordinarily, Meadows himself has expressed the exact opposite view--- in his memoirs.

On Jan. 20, 2021, as Joe Biden was about to be sworn in as president, Meadows raced to the White House, “because he had several documents to pick up, and only two hours to do it,” Meadows wrote in his recent memoir, “The Chief’s Chief.”  Meadows further explained: “For weeks, we had been trying to declassify several key papers that would unravel the full story of how the United States intelligence community had targeted President Trump, spied on his campaign, and attempted to bring him down—which by the way is the only ‘coup’ that ever occurred during President Trump’s years in the White House.”

Meadows added: “The president had declassified some documents before I became Chief of Staff, but several key documents remained classified despite his direct orders to declassify a list of relevant notes, memos and emails [emphasis added].”

***

Another authoritative source of corroborating information that Trump attempted to leak classified information on. Strzok to the press is New York Times reporter Maggie Haberman.

In her recent book on Trump, “Confidence Man: The Making of Donald Trump and the Breaking of America,”,  Haberman made a passing reference – all of two sentences and in the book’s epilogue – reporting that Trump casually divulged to her months after he left office that Meadows had taken the previously undisclosed and still classified and transcribed Strzok texts with him when he left the White House, and Trump could arrange for Meadows to provide copies to her.

Haberman wrote: “We learned the night before Biden’s inauguration that Trump was planning to make them public.  He ultimately didn’t, but he told me that Meadows had that material in his possession and offered to connect me with him.”

What Trump told Haberman by itself had the potential to be a bombshell, but Trump’s comments to her, went largely unnoticed; not the least of which was by Haberman herself. Haberman may not have fully understood in the moment or subsequently contextualized the importance of Trump’s comments to her:

Trump in essence was proposing that his former chief of staff, at his direction, leak classified information to Haberman, during a time such a leak would have been illegal, because Trump was no longer president.

As I have previously reported, on the last day of Trump’s presidency, Trump provided right wing journalist, John Solomon, access to a nearly thousand-page trove of classified records, known among Trump and his closest aides, as the Russia papers. Three sources confirmed to me that derogatory information about Strzok was included in the Russia papers, and  this was among the information which Trump and Meadows aspired to leak to Haberman, Solomon, and others. 

Solomon confirmed to me information, first provided by other sources, that he twice met with Trump in the White House, on Trump’s last day in office, and during both of those meetings, was then allowed to read the still-classified Russia papers.

Solomon also told me that while at the White House he met with Mark Meadows as well, who had assured him that the White House Counsel had determined the Russia papers to now be fully declassified (other sources told me that the White House counsel made no such determination) and, most importantly, Meadows would send Solomon a full set by the end of the evening.

Indeed, later that evening – the eve of Biden’s inauguration and just one hour after Trump signed his presidential order declassifying the Russian papers    a relatively small portion of the records were then turned over to Solomon. Solomon published a story that night (and a second one the following week), based on the records Trump had provided him.

As for how the documents came into his possession, Solomon told me, an official from the Justice Department, whose identity he does not know, delivered them in a “plain manila envelope” to the concierge’s desk of the office building where he works. Accompanying the document was a note from the official telling Solomon that the documents were only a “down payment” on a full set of the Russia papers still to come later that same evening. Solomon told me he had not retained the note from the official, one reason he could not identify him.

Solomon told me that he called Meadows to thank him, believing that Meadows had had the documents delivered to him, only to have Meadows respond with an expression of great surprise and ignorance.  “I don’t know who those are from,” Solomon says Meadows told him. As a result, Solomon said, Meadows decided to “pull back” and not send him the rest of the Russia papers. The following morning, as Biden was about to be sworn in, Meadows wrote his own supplementary memo, clarifying Trump’s declassification order, and delaying release of the Russia papers until the Justice Department and other agencies could fully weigh in.

Solomon told me that the Meadows memo resulted in him receiving no further documents from the Russia papers, although there is some evidence that Trump and Meadows provided Solomon with additional other classified papers – and that they may have done so, after Trump left office, when the possession and transmission of such records to others might be illegal. Notably, Solomon himself went out of his way to convey to me that neither Trump nor Meadows leaked any classified information to him after they left office, because to do so might mean, as Solomon understood it, that one or both men would be violating the law.

Two weeks after Trump left office, Solomon wrote a column inferring that he had just obtained more than a thousand additional pages of the classified Russia papers.

On Feb. 5, 2021, Solomon wrote on his website: “More than two weeks after Donald Trump officially declassified the evidence, the vast majority of documents detailing FBI and Justice Department failures in the now-discredited Russia collusion investigation remain out of public view in a delay that has thwarted the former president's goal of sweeping transparency.”

Solomon further wrote: “Just the News was able to obtain about 15% of the thousands of pages of declassified documents, from a hodgepodge network of White House officials who worked on the declassification, law enforcement and intelligence officials who got their own versions of the declassified documents, and members of Congress who were given copies of some memos in the final days of the Trump presidency.”

Solomon’s claims were disingenuous:  At least some of Russia papers Solomon claimed he now had in his possession were classified, not declassified. By Solomon’s own admission, Trump and Meadows allowed him twice on Jan. 19, 2021 to have full access to the Russia papers in the White House, a much more likely source for a portion of the leak of classified documents he was newly claiming to be in his physical possession.

Solomon identified one source of this new leak of the Russia papers as “White House officials who worked on the declassification.”   But in his memoirs, Mark Meadows wrote that he, not subordinates at the White House, personally handled the so-called declassification of the Russia papers.  In the “final weeks” of Trump’s presidency, Meadows wrote, “he personally went through every page” of the Russia papers “to make sure that the president’s declassification would not inadvertently disclose sources of methods,” Even if another White House official who worked on the declassification” leaked the papers to Solomon, instead of Meadows himself, it is unlikely that they did so without Meadows’ approval and perhaps Trump’s as well, given that this purported leaker worked for Meadows, that Meadows oversaw the “declassification effort” on behalf of Trump, and that Trump had already twice personally allowed Solomon access to the papers.

Perhaps most importantly is the timing of Solomon’s having received a portion of the 1,000-page tranche of classified Russia papers. Solomon infers that to have happened only recently, just before he wrote his column, and after Trump’s term in office was over. If true, and Trump or Meadows provided the records to Solomon, or that they directed or conspired with others to do so, that would implicate one or both men in the commission of a potential felony.

Solomon insisted to me that neither Trump nor Meadows had done anything wrong. He said that the records to which he referred to in his column were part of a larger collection of declassified documents he assembled from congressional committees, “multiple Freedom of Information requests” by right-wing advocacy groups, information readily available online of records on the FBI’s Russia investigation which had been declassified by Trump political appointees throughout the federal government, and from the appendices of reports by the Justice Department’s Inspector General: “It is more accurate to say that what I put together is a composite,” Solomon told me.

But Solomon himself has described other papers on Russia provided to him quite differently. He was twice given access by the president of the United States to an archive of classified papers on the FBI’s Russia investigation— “thousands of pages” — which Solomon has compared to the Pentagon Papers: “These [Russian papers] are to judicial integrity what the Pentagon Papers were to the Vietnam War,” Solomon said on Fox News in January of 2021. Regarding some of the documents he characterized in his article as declassified while brandishing his access to it, a former White House official said that several of the documents to which Solomon was referring were declassified by people not authorized to do so. Thus, they remained classified and likely illegal for most government officials to leak them to Solomon. Additionally, Solomon had published a story a full week after Trump left the presidency, based on highly classified documents on Christopher Steele. Solomon has told me that they were provided to him by an unnamed Justice Department official at the direction of Donald Trump and Mark Meadows. Solomon asserted that he received the document on Jan. 19, 2021, the last evening of Trump’s presidency, when it was still legal for Trump to release them. The claim that Trump and Meadows did not provide him those documents after Jan 20, when it would have been illegal for either one or both of them, to provide them to Solomon, is as of now based solely on Solomon’s word and nothing more.

Solomon declined to tell me whether he read any documents related specifically to Strzok, but a congressional Republican told me that Solomon had previously asked him to relay to aides to Trump that Solomon was hoping that Trump might provide him with classified documents on Strzok, and that Solomon later told them that he personally raised the issue with Trump, who promised he would get the records to Solomon, and that they contained derogatory information about Strzok.

Although the documents leaked to Solomon were not about Strzok personally, Trump and Solomon persisted in their belief that they would more broadly discredit the FBI’s investigation of the Russian Federation’s Active Measures campaign to interfere with the 2016 U.S. presidential campaign, by helping to elect Trump and defeating Hillary Clinton. Strzok had played both a supervisory and investigative role in the investigation, codenamed “Crossfire Hurricane.” The classified material which Trump provided to Solomon was meant to discredit by name two specific FBI informants providing intelligence to Strzok and other investigators on the case. In doing so, they indirectly attacked Strzok and they also damaged the ability of Strzok and the other FBI agents working the case to further conduct counter-intelligence and criminal investigations by compromising sources and methods.

If Trump was truthful and accurate in his comments, in what he said to his own aides, Maggie Haberman, and at least one other person, the significance of such to his presidency cannot be overstated.

First, any such leak of classified information by Trump or anyone at Trump’s direction, after Trump had left office, was a potential crime.

Second, if what Trump told Haberman and others was correct when he asserted that Meadows removed presidential records—especially ones that remained classified—from the White House upon leaving office, Meadows too may have violated federal law.

Third, if Trump and Meadows coordinated or worked together to leak classified material on Strzok to the press, that might lead a reasonable prosecutor to open an investigation as to whether they conspired to break the law.

Paul Pelletier, a former Acting Chief of the Justice Department's Criminal Division's Fraud Section, told me, “Any agreement between two or more people to violate federal law is itself a violation of the federal conspiracy statute.  It’s that simple.”

Former F.B.I. agent Peter Strzok

Although it is unclear what the previously undisclosed tranche of Strzok texts taken by Meadows from the White House would show, dozens of messages between Strzok and Lisa Page, a senior FBI attorney, were previously made public. Strzok and Page were in the midst of an extramarital affair against the backdrop of Strzok’s leading role in the Russia investigation. The text messages released by the Justice Department at the behest of then-Deputy Attorney General Rod Rosenstein and Trump’s congressional Republican allies were salacious. Many of those messages showed the two making disparaging comments about Trump, although less attention was paid to the fact that they also often severely criticized both Democratic and Republican political candidates and officeholders.

Trump and his surrogates have long claimed that the political opinions expressed by Strzok and Page demonstrated evidence of a vast conspiracy that the Justice Department and FBI had conducted their Russia election influence probe for the purpose of preventing Trump’s election, or failing that, once Trump was elected president, to drive him from office.  There is little doubt that Strzok’s and Page’s use of their work email for such purposes harmed the FBI’s reputation for institutional non-partisanship.  The Justice Department’s Inspector General has said he was “deeply troubled” by Strzok’s texts.  But a thorough and exhaustive investigative by that very same Inspector General found no evidence that Trump’s charges of political bias by the FBI in the conduct of its Russia inquiry.  Nor did the Inspector General find any evidence to support Trump’s conspiracy theories that the investigation was undertaken to prevent Trump’s election as president or drive him from office as a contingency. Despite numerous other investigations by Republican allies of the former president in Congress, no credible evidence has ever surfaced to lend credence to those same allegations.

Before Donald Trump named Mark Meadows his presidential chief of staff, Meadows was a Republican member of Congress and a founding member, and later, chairman of the House Freedom Caucus.  As the ranking Republican on the House Oversight Committee, few members of Congress were as zealous in their pursuit of proving conspiracy theories that an amorphous Deep State, the Justice Department, and FBI were abusing their power to destroy Donald Trump.

To achieve those ends, no member of Congress so zealously pursued Peter Strzok.  In instance after instance, the allegations that Meadows has leveled against Strzok and Lisa Page have been debunked or proven to be baseless.

For example, Meadows lodged an accusation against Page and Strzok, alleging that one or both had leaked information from the Russia investigation to harm Trump. The evidence: an email exchange between Strzok and Page to discuss the topic of a “Media Leak Strategy.”

Then President Trump tweeted: “New Strzok-Page texts reveal “Media Leak Strategy.”@FoxNews  So terrible, and NOTHING is being done at DOJ or FBI - but the world is watching, and they get it completely.”

However, as the disclosure of other emails and evidence would show, there was a much more mundane explanation. As a result of Strzok’s own past success in tracking down and prosecuting leakers, he now sat on an ad hoc working group tasked with preventing leaks of classified information—a top priority of Donald Trump and Mark Meadows during the Trump presidency.

Editing and research assistance by Arie Serota. Additional editing by Jonathan Simon.