Steps reportedly taken by former National Security Adviser Susan Rice to “unmask” names of associates of President Donald Trump before he took office could put her in legal jeopardy, according to legal and national security experts.
Bloomberg on Monday cited two unnamed sources who said Ezra Cohen-Watnick, the National Security Council’s senior director for intelligence, discovered in February that Rice made multiple requests to learn the names of Americans whose names had been disguised in surveillance reports related to Trump’s transition.
“They thought they were never going to get caught … Ms. Rice needs a lawyer. And she needs a good one.”
The U.S. officials who spoke to Bloomberg in exchange for anonymity said the reports contained summaries of conversations among foreign targets discussing the incoming Trump administration and, in some cases, conversations between Trump transition members and foreign officials. The intelligence reports contained “valuable political information,” a source told Bloomberg.
Former U.S. Attorney Joseph diGenova told LifeZette that the reports of Rice’s activity, if true, likely would constitute a crime. He said he has spoken to sources who indicate three other members of the administration of former President Barack Obama also participated in unmasking.
“This is pretty clear,” said diGenova, who was the top federal prosecutor for the District of Columbia under Ronald Reagan. “They thought they were never going to get caught … Ms. Rice needs a lawyer. And she needs a good one.”
Others argue the reports about Rice are much ado about nothing. Susan Hennessey, a fellow in national security in governance studies at the Brookings Institution, maintained in a series of tweets that nothing in the story justifies the “bizarre conduct” of House Intelligence Committee Chairman Devin Nunes (R-Calif.), who told reporters that he has seen evidence of improper unmasking of Trump associates.
“What we’re seeing here is U.S. officials doing jobs to respond to what had markers of a counterintelligence threat: the Trump campaign,” she tweeted.
Michael Pregent, a former intelligence officer who serves as an adjunct fellow at Hudson Institute, agreed there are legitimate reasons for the national security adviser to find out the names of Americans referenced in reports because of incidental contact during surveillance operations.
“The problem is, it’s not legitimate [in Rice’s case], and they didn’t do it until mid-January,” he told LifeZette.
Pregent said the names of Americans routinely appear on transcripts of surveillance that intelligence agencies conduct on foreigners in the United States. Only a small number of people know the identifies of those Americans, because reports made of the surveillance protect their privacy with names such as “U.S. Person 1.”
A national security adviser may have cause to know the names of Americans referenced in reports involving intelligence of designated terrorists, Pregent said. But he said it would be an “overreach” to unmask names in reports on surveillance of foreign ambassadors, as apparently was the case here.
“That means it’s illegal,” he said.
“This was a crime,” he said. “They targeted people for unmasking, not intelligence.”
Pregent said if there was cause to believe — based on a surveillance report — that an American had violated the law, the proper procedure would be to refer it to the Justice Department and the FBI. What appears to have happened in the waning days of the Obama administration is that Rice or others requested surveillance reports of foreign targets and then matched phone numbers in those reports with known phone numbers of Trump associates, he said.
“It’s a fishing expedition that’s so easy, it’s illegal,” he said.
Pregent noted that news organizations printed information about incoming National Security Adviser Michael Flynn’s conversations with Russian Ambassador Sergey Kislyak about the future of sanctions imposed by the Obama administration. Trump fired Flynn because he had not been forthcoming with Vice President Mike Pence about the nature of his conversations. But there is nothing illegal about the conversations themselves.
“Because what they found on Michael Flynn wasn’t damning enough to take to the DOJ, they leaked it,” Pregent said. “There’s only one felony that’s been committed so far, and that is leaking Michael Flynn’s name to The New York Times and The Washington Post.”
Pregent added that while leaking names from classified intelligence reports is a separate offense, that is not an element of the crime of improper unmasking.
“It doesn’t have to be leaked to the press to be a violation,” he said.
It is unclear whether law enforcement officials are pursing investigations about leaking or unmasking. Pregent said any possible investigation would be complicated by the fact that Attorney General Jeff Sessions has recused himself of issues relating to the Trump campaign since he was a surrogate and by the fact that the Justice Department still does not have a deputy attorney general who would handle such matters.
In addition, FBI Director James Comey declined during congressional testimony last month to confirm whether his agency is investigating leaks. DiGenova lambasted the director.
“He is such a phony. He is so without credibility,” he said.