Editor’s Note: Frederick D. Baron served as director of the Executive Office of National Security at the Department of Justice, associate deputy attorney general and counsel to the Senate Select Committee on Intelligence. Dennis Aftergut is a former federal prosecutor and currently counsel to Lawyers Defending American Democracy. The views expressed in this commentary are their own. Read more at CNN Opinion.
With Donald Trump garnering enough primary wins to clinch the Republican presidential nomination on Tuesday night, President Joe Biden has apparently opted to remain above politics on national security matters by giving Trump access to some classified intelligence. The White House reportedly plans to follow tradition and authorize national security briefings for Trump after he officially becomes his party’s nominee at the Republican National Convention in July.
This decision is one of many where Biden is damned if he does and damned if he doesn’t.
Sensible people rightly wonder what could justify intel briefings for a presidential candidate currently under a 40-count federal indictment in the Southern District of Florida for mishandling classified information and obstructing the government’s effort to have those documents returned. Trump has denied the grand jury’s allegations.
The risk of briefing Trump on intelligence matters was underscored at a House Judiciary Committee hearing Tuesday on Biden’s handling of classified documents. Ranking Democrat Jamie Raskin of Maryland highlighted the risk when he compared special counsel Robert Hur’s investigation of the president and the Trump prosecution helmed by special counsel Jack Smith. Raskin described Trump as someone “who has nothing but contempt for the rule of law and acts solely in pursuit of his own constantly multiplying corrupt schemes.”
With that reality front and center for the intelligence community, there is still a way to carefully craft briefings for Trump that can protect national security information while preserving the 72-year tradition of briefing candidates on the threat landscape. That tradition has been followed by presidents of both parties and has well-served the national interest.
Biden has been around the national security block more times than virtually any elected leader on the federal government scene, given his lengthy chairmanships of the Senate Judiciary and Foreign Relations committees. He will have to draw on that experience to thread a very fine needle: He can preserve a bipartisan norm by sharing some intel without exposing intelligence agency sources and methods.
In three important respects, Trump’s relationship with Russia raises questions about entrusting him with sensitive governmental information.
First, at a 2018 joint press conference in Helsinki Trump famously sided with Putin over the US intelligence community on the question of Russia’s interference with the 2016 election.
Second, as Biden emphasized in his State of the Union address, Trump recently invited Russia to “do whatever the hell they want” to NATO allies that pay less than 2% of their GDP to finance the alliance. This invitation is yet another example of Trump currying favor with Putin.
Third, Trump is now reportedly desperate for cash to secure a bond or loan in order to appeal his $450 million civil fraud judgment in New York. Serious financial need is a top reason for denial of clearances for federal government positions requiring access to classified national security information, due to vulnerability to bribery or coercion. A presidential candidate should not be held to a different standard than other applicants seeking a security clearance. And there is a concerning track record to take into account as well: Trump reportedly has benefited from the generosity of Russian oligarchs before.
Even assuming for the sake of argument that Trump would not intentionally sell out the nation, MSNBC columnist Steve Benen assembled a worrisome Top 10 list of instances of Trump’s reckless sharing of sensitive national security information. These include the former president allegedly showing a highly confidential war plan to a writer with no security clearances at Trump’s Bedminster home (he claimed “there was no document” in the meeting) and allegedly sharing information on US nuclear submarine capabilities with a foreign businessman at Mar-a-Lago, with the former president’s spokesperson saying Trump “did nothing wrong.” Both instances occurred after Trump left office.
Given the risks posed by Trump’s access to national security intelligence, we must ask whether Biden’s asymmetrical belief in sticking to political norms is an Achilles heel.
Biden and his National Security Council team surely analyzed the competing considerations with a fine-toothed comb. In opting to provide intelligence briefings to candidate Trump, they are likely to impose conditions on the briefings for security reasons.
This approach has been endorsed by senior intelligence veterans across the spectrum, from Trump’s former National Security Advisor John Bolton to former Obama administration CIA Director John Brennan to former House Intelligence Committee Chairman Adam Schiff.
To honor Biden’s briefing pledge while securing sensitive information, the intelligence community can adopt protocols along the following lines:
• Provide intel briefings to Trump alone, without permitting his advisors to attend. Doing so sends the message to Trump that if leaks occur he will be pinpointed as the obvious source.
• Briefings can be entirely oral. Giving no documents to Trump would further reduce the risks of leaking and diminish the credibility of any leaks should they occur.
• The briefings should carefully avoid any information that might disclose, or lead to discovery of, intelligence sources and methods such as specific human informants or technical means of communications interception.
• Rather than disclosing actual data, in many circumstances briefings can be limited to signaling which public commentary by national security experts is consistent with intelligence community findings.
Still, with such strictures, why do intel briefings for Trump at all?
Biden believes in a rule-of-law society. He knows that constitutionalism depends on maintaining norms of good governance that go beyond legal requirements.
Biden also believes he will win re-election, in part due to his adherence to certain time-honored rules of fair play. And when Trump is gone, it will have been important to preserve balanced standards that have long sustained our system of government.
Of course, Biden may be accused of providing only limited information. But that accusation will pale in comparison to the political storm that would follow a complete denial of briefings. Moreover, any debate over briefing restrictions would bring to the foreground Trump’s horrendous record of compromising classified information. That debate is one Biden should welcome.
At Thursday’s State of the Union, Biden showed himself to be a vibrant master of American government. In granting intelligence briefings to his rival, he clearly reasoned that preserving a nonpartisan tradition was the wisest decision at this difficult moment in the nation’s history.
