Did Omarosa’s secret recordings break the law? I asked a legal expert.

Did Omarosa’s secret recordings break the law? I asked a legal expert.
President Donald Trump listens to director of communications for the White House Public Liaison Office Omarosa Manigault during an event in the Oval Office of the White House October 24, 2017, in Washington, DC.



“It’s a huge, embarrassing security breach.”

Omarosa Manigault-Newman is having a moment.


The reality TV star turned prominent White House aide kicked off her book tour this weekend by alleging that President Trump uses racist language, and by releasing a secret recording of White House Chief of Staff John Kelly firing her in the White House Situation Room.


When Manigault-Newman recorded Kelly inside one of the most high-security locations in the White House, she broke with established safety protocols. But there was no classified information discussed, so it’s not immediately clear if this constitutes an internal rule violation or a criminal act.


Several Trump allies, including his lawyer Rudy Giuliani, have implied that Manigault-Newman may have broken the law by covertly recording conversations in the Situation Room. “She’s certainly violating national security regulations, which I think have the force of law,” Giuliani said Monday on Fox & Friends.


But is he technically right here? It’s certainly a breach of White House norms and regulations, but did Manigault-Newman actually break the law? And what does it suggest about this White House that a breach of this sort was even possible?


To get some answers, I reached out to Stephen Vladeck, a law professor at the University of Texas who specializes in national security and constitutional law. A lightly edited transcript of our conversation follows.


Sean Illing


First of all, did Omarosa commit a crime by secretly recording John Kelly in the White House Situation Room?


Stephen Vladeck


Probably not. If you try hard enough, you could make a whole lot of things violations of the Espionage Act, and someone who sat down with a copy of the Espionage Act could probably find a way to argue that Omarosa violated it, but I don’t see any way to make that argument legally plausible.


Sean Illing


So it would take some significant legal acrobatics to turn this into a prosecutable crime?


Stephen Vladeck


Yeah, I think so. There’s no question that this is a violation of all kinds of safety protocols, but there’s a difference between breaking the rules and breaking the law, and this appears to be the former, not the latter.


Sean Illing


If she taped conversations involving classified materials, does that then become a violation of law?


Stephen Vladeck


Absolutely. It’s a crime to record or share sensitive information that you’re not legally authorized to have, and so there’s no doubt that a recording of a discussion of information that is classified would violate the Espionage Act. But there’s no evidence, as of now, that this has happened here.


Of course, that could change if more tapes are released.


Sean Illing


Omarosa did not have a security clearance while she worked in the White House. If she did, would that alter the legal implications here?


Stephen Vladeck


Again, we have to be careful to distinguish between breaking the rules and committing a crime. I don’t think it’s a crime for someone who has a security clearance to record a conversation somewhere they’re not supposed to record a conversation.


Sean Illing


Ultimately, it would still hinge on the content of the conversation?


Stephen Vladeck


Right. If she and John Kelly had a discussion in the Situation Room about whether the Washington Nationals have enough relief pitching and she recorded it, that would not be illegal. But if she recorded and released a conversation about the president’s classified daily briefing, that would absolutely be illegal.


Sean Illing


At the very least, allowing someone to walk around the White House with an active recording device seems like a major security breach.


Stephen Vladeck


Of course it is. It’s a huge, embarrassing security breach. It’s a security breach for which various people in the administration should be held responsible. But not all security breaches are crimes, and we start tumbling down a slippery slope if we treat them otherwise.


Sean Illing


Does this speak to a broader security issue in this White House, which is staffed to an unusual degree with people with little to no experience in government?


Stephen Vladeck


It’s not just a lack of experience; it’s an aggressive indifference to following the rules that normally govern how senior executive officials do their jobs. It’s the latest in a long and numbing line of examples that this White House just doesn’t take security seriously.


Sean Illing


Trump and former White House staffers are apparently exploring ways to prevent Omarosa from releasing more tapes. Can they do this?


Stephen Vladeck


They can try, but there is no action that courts are more aggressively skeptical of than efforts to restrain speakers from speaking before they speak. So it’s highly unlikely that any effort to preemptively silence Omarosa will succeed.