White House says Yemen strikes chat wasn't classified. It could still be illegal.
In the wake of an explosive report that senior Trump administration officials discussed planned military strikes in a Signal chat that included a journalist, the White House quickly insisted the information wasn't classified. But that surprising circumstance wouldn't eliminate legal questions concerning the stunning security breach, according to national security and legal experts.
The Atlantic's editor-in-chief Jeffrey Goldberg described in a firsthand account being invited to a chat on the encrypted messaging app Signal that included several senior officials. The group discussed potential U.S. military strikes on Iran-backed Houthi targets in Yemen. Two hours before carrying out the strikes on March 15, Defense Secretary Pete Hegseth began discussing attack mechanisms and sequencing, saying that the first bombs would drop at "1415," for instance.
"No one would ever think that senior principals at agencies discussing operational military plans in real time would not be considered as classified," Mark Zaid, a lawyer who focuses on national security issues, told Paste BN.
Federal laws criminalize mishandling classified information – for example, by knowingly transmitting it to an unauthorized person or retaining it in an unauthorized location. The Espionage Act, which protects national defense information, includes provisions that go beyond classified information, such as one that bans allowing national defense information to be inappropriately shared "through gross negligence."
"It certainly appears that it should be classified, and you may have mishandling of information based on that alone," said Norm Eisen, who helped write the rules on classified national security information as a special counsel in the Obama administration.
"Even if it's not classified, a variety of federal laws require appropriate handling of information," Eisen added.
Typically, federal prosecutions for mishandling sensitive national defense information target other types of conduct such as an intentional leak. But when former Secretary of State Hillary Clinton got in hot water for using a personal email system during the Obama administration, multiple Trump officials – including members of the chat – said she should have been prosecuted.
The Justice Department declined to comment when asked whether it is opening an investigation or considering prosecutions. Attorney General Pam Bondi said at a Thursday press conference that sensitive, unclassified information was "inadvertently released, and what we should be talking about is it was a very successful mission."
The White House referred Paste BN to press secretary Karoline Leavitt's post on X saying the White House was looking into how a journalist was added to the chat. In that post, Leavitt said "No 'war plans' were discussed," and "no classified material was sent to the thread."
The FBI referred Paste BN to FBI Director Kash Patel's testimony at a Tuesday Senate Intelligence Committee hearing that he was recently briefed on the issue and didn't have an update on whether the bureau had launched an investigation.
The Department of Defense and National Security Council didn't respond to requests for comment.
In comments to reporters, Hegseth disputed that the attack sequencing schedule he shared was a "war plan," and also said the information wasn't classified.
Espionage Act protects national defense information – even if it's not classified
Sen. Ron Wyden, D-Ore., called for criminal investigations at the Tuesday hearing based on the security breach.
"Obviously reckless. Obviously dangerous. Both the mishandling of classified information and the deliberate destruction of federal records are potential crimes that ought to be investigated immediately," Wyden said.
Prosecutions under the Espionage Act for mishandling national defense information haven't been limited to classified information, Heidi Kitrosser, a Northwestern University law professor who focuses on government secrecy issues, told Paste BN in an email. If the information involved is "closely held" and could damage the United States, courts have said it qualifies.
Whether the Signal chat conduct constituted "gross negligence" under the Espionage Act is a separate question. National Security Adviser Michael Waltz has said he accidentally included Goldberg in the chat. None of the included officials appears to have checked who was in the chat and voiced concerns.
At least two of the included officials, Middle East and Ukraine envoy Steve Witkoff and National Intelligence Director Tulsi Gabbard, have confirmed they were traveling abroad during the communications, although Witkoff posted on X Wednesday that he only brought a secure government phone with him during his trip to Moscow and didn't comment in the chat until after he left Russia, when he again had access to personal devices.
"The fact that they're using Signal in real time in a non-secured, encrypted app – not designed for classified information, that, in fact, the NSA had just warned about as having vulnerabilities – and some of the recipients are apparently overseas at the time − raises incredible operational security concerns," Zaid said.
Zaid added that multiple provisions of the Espionage Act could theoretically apply if a prosecutor wanted them to, although usually people are prosecuted under the act when they showed a clear intent to disseminate the information improperly.
Top officials called Hillary Clinton conduct 'lawless' and 'criminal'
In the summer of 2016, then-FBI Director James Comey recommended against prosecuting Hillary Clinton for what he described as her "extremely careless" handling of classified information by using a personal email system as secretary of state.
Comey explained that past criminal charges typically involved intentionally mishandling classified information, exposing "vast quantities" of materials, or behavior that indicated the defendant was disloyal to the U.S. or trying to obstruct justice.
"Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case," Comey said in a statement.
That didn't sit well with several of today's top officials in the Trump administration.
“People have gone to jail for one-100th of what – even one-1,000th – of what Hillary Clinton did," Hegseth said on Fox News in November 2016 of Clinton's emails and a New York Post report that she had her maid print out classified material. "It's all criminal."
"She deserves no security clearance," Attorney General Pam Bondi, who was not in the Signal chat, said of Hillary Clinton at the 2016 Republican National Convention, shortly after Comey's announcement. "This lawlessness must stop right here, right now."
"Lock her up – I love that," Pam Bondi added, pointing to something from the crowd.
At her Senate confirmation hearing this past January, Bondi said the "No. 1 job" of the Justice Department is "to enforce the law fairly and evenhandedly."
Before Comey's announcement, then-Senator and Republican presidential candidate Marco Rubio, who is now Trump's secretary of state and was in the Signal chat, repeatedly attacked Clinton over her email practices, suggesting that a new form of justice would be coming for her if he became president.
“Nobody is above the law, not even Hillary Clinton,” Rubio said on Fox News. "We're going to hold people accountable."
After Comey declined to prosecute, Rubio called for the State Department to suspend Clinton's security clearance.
Trump himself repeatedly called for Clinton to be jailed, including after Comey's announcement. “She has to go to jail,” he said in an October 2016 speech.
In the spring of 2018, Trump told White House counsel Donald F. McGahn II he wanted to order the Justice Department to prosecute Clinton, according to the New York Times. McGahn had White House lawyers write a memo warning the move could get Trump impeached.
"I don't think these guys should be prosecuted, but it's not lost on me, the hypocrisy, that they said she should," Zaid said. "And if they think that, then that should equally apply to them."
Could federal records laws have been violated?
The Signal chat conduct could also implicate federal records laws like the Federal Records Act, which requires government officials to make and preserve various records to document agency work. There is already one lawsuit, brought by nonprofit government watchdog American Oversight, alleging the Signal chat didn't comply with those record-keeping requirements.
American Oversight said it regularly requests Department of Defense communications through FOIA, a law that provides public access to various government records. However, defense officials don't forward Signal messages – meaning FOIA requesters wouldn't be able to see them.
National Security Adviser Michael Waltz set some of the chat messages to delete after one week, and some to delete after four weeks, according to the Atlantic's report. That deletion protocol would implicate "a whole other body of federal law, which requires the preservation of these materials," according to Eisen.
"So there appear to be multiple serious – potentially criminal, civil, and regulatory – legal issues," Eisen added. "And finally, there's the sheer stupidity of doing this at all."