Nat sec officials discussion of 'clearly classified' information violated law, experts say

The inadvertent inclusion of a journalist on a Signal group chat discussing attack plans means officials likely violated the Espionage Act and public records laws while flouting guidance on how to discuss sensitive information.

The contents of the discussion, shared by The Atlantic, show the group chat started by National Security Advisor Mike Waltz included discussions about the timelines and targets of an impending airstrike on Houthi rebels in Yemen as Defense Secretary Pete Hegseth gave the 19 members on the chat a rundown of operations. 

“I can't fathom it doesn't violate the Espionage Act,” Mark Zaid, a national security law expert, told The Hill.

“You should also think of whether it violates the Federal Records Act by the fact that they had the messages set to destroy, with no indication, as far as we know, that they were preserving them, which is required.”

The administration has denied that the chat contained classified information — a claim congressional Democrats have called laughable. 

“I mean, it is very clearly classified under the executive order,” that governs such information, Zaid said. “I couldn't think of something more obvious.”

However, the Espionage Act — the law the Trump administration would most likely turn to as it vows to ramp up its own prosecution of leakers — doesn’t rely on classification. Instead, it allows prosecution of those who share national defense information, whether intentionally or inadvertently.

“While you can argue that it wasn't classified — probably in bad faith — you cannot argue that it was not national defense information,” said Kel McClanahan, executive director of National Security Counselors, a non-profit law firm.

McClanahan said members of the chat group may have violated different sections of the law, even as Defense Secretary Pete Hegseth contributed the bulk of the information about the impending attack.

“Waltz plainly violated [Section] 793(f) of the Espionage Act, the gross negligence,” law, he said. “That's the ‘don't be a dumb a–’ law.”

But he noted that the law also requires reporting from those aware classified information was leaked, something that the group may have been alerted to when Atlantic journalist Jeffrey Goldberg left the chat Sunday and reached out for comment from the administration on Monday.

“I'll be curious to find out if any of them reported that,” McClanahan said.

Government watchdogs are also focused on the group chat’s sidestepping of records retention laws — another potential violation, and a broader sign officials may be using such platforms to avoid review of their communications under the Freedom of Information Act (FOIA).

Both Zaid and McClanahan said the group chat’s disappearing message function for some of its content also likely violated the Federal Records Act.

American Oversight filed a suit Tuesday to block any destruction of the records of the chat, which have since been shared by The Atlantic.

“This isn't just reckless, it's illegal. And it's part of a disturbing pattern from this administration, a calculated effort to hide the truth, erase paper trails, and govern from the shadows, far from the reach of Congress, the courts and the American people,” Chioma Chukwu, the interim executive director of the group, told reporters Thursday.

McClanahan said he requested the records of the chat almost immediately, saying a denial would require FOIA officials to say whether the information in classified, has been deleted, or was discussed on a personal device — violating policy while using less secure devices to discuss the highly sensitive mission.

“You know, every argument they can throw at it is a win for us,” he said.
“Because if they say it's a personal device, then, ha-ha, hello! If they say it's classified, then they lied in the hearing, and if they say, ‘it's already been deleted, we can't recover it’ then they did not back it up the way that even [CIA Director] John Ratcliffe said in testimony they are required to do.”

But McClanahan said even the use of Signal at all confirms a suspicion that officials are routinely turning to unofficial channels to discuss government business.

“I think this is indicative of a bigger problem. Until yesterday, there were lots of people saying the Trump administration is using Signal. They're using all these non-official channels to conduct business because they're trying to avoid record keeping, they're trying to avoid FOIA, they're trying to avoid all the things that make them accountable. But we could never prove it,” he said.

“This is proof that they're using Signal. Because not only did they use it, but every single person added to that signal chat, not a single one of them said, ‘This is strange — I am surprised we're using Signal.’” 

The news about the Signal group chat dropped the day before Director of National Intelligence Tulsi Gabbard and Ratcliffe appeared before Congress for the annual worldwide threats hearing, during which both consistently denied that the chat had any classified information.

At one point, House Intelligence ranking member Jim Himes (D-Conn.) pulled up the Office of the Director of National Intelligence's own classification guidance, which says that advance warning of an attack should be labeled as top secret.

And Rep. Joaquin Castro (D-Texas) said the two officials lied in implying such information wouldn’t be classified.

“The idea that this information, if it was presented to our committee, would not be classified — y’all know it was a lie,” he said.

Gabbard ceded Wednesday that including a journalist on the group chat was a mistake, but she did not directly address the wisdom of using an encrypted app, saying only that employees should “apply best practices.”

“It was a mistake that a reporter was inadvertently added to a signal chat with high-level national security principles, having a policy discussion about imminent strikes against the Houthis and the effects of the strike,” she told House lawmakers.

“Ideally, these conversations occur in person. However, at times fast-moving and coordination of an unclassified nature is necessary where in-person conversation is not an option,” she said.

But lawmakers and other national security experts have called use of the app cavalier, noting that intelligence agencies have warned they are targets of foreign governments and that at least two participants in the group were overseas. 

“There are all sorts of operational security policies concerning the use of electronics overseas,” Zaid said, noting use abroad can make it easier for adversaries to obtain information.

“So to have cabinet-level officials using a publicly available encrypted app for likely classified communications, when the system is not created for that use, about war plans where recipients were in foreign countries — it's got to be one of the most blatant operational security failures that we have seen in recent years,” Zaid said.

“The U.S. government should issue a thank-you note to Jeff Goldberg for not saying anything until after the operation had concluded,” Zaid said, noting that if anyone else posted the information immediately, “they would have had to scuttle the entire operation.”