TO: President Donald J. Trump
FROM: Mark Langfan
RE: Mr. Anonymous’ NYT Op-ed’s Basis for Criminal Investigation
Brief Facts:
On Sept. 5, 2018 “a senior official in the Trump administration” (“Mr. X”) published an anonymous op-ed in the New York Times in which he made various claims alleging President Trump’s supposed “amorality” and other salacious claims including but limited to statements claiming that Mr. X intentionally succeeded in overturning the duly-elected President Trump’s specific policy actions.
Question of Law:
Are there any Federal criminal laws that Mr. X may have violated that would serve as a basis for a criminal investigation of Mr. X for the publishing of his anonymous op-ed in the New York Times?
Brief Answer:
Given that Mr. X identifies himself as a “senior official in the Trump administration,” he most assuredly took the Federal oath of office and is therefore subject to the Oath of Office law 5 U.S.C. Sec. 3331, and Ex. Order 10450. Therefore, under the Federal “Oath of Office” law 5 U.S.C. Section 3331, and promulgated Executive Order regarding “Security requirements for Government employment,” Mr. X likely violated numerous sections of Exec. Ord. 10450 including but not limited to Exec. Ord. 10450 Sec. 8(a):
(1)
(i) Any behavior, activities . . . that show that the individual is not reliable or trustworthy.
(iii) Any . . . infamous, dishonest . . . conduct.
(v) Any facts which furnish reason to believe that the individual may be subjected to coercion, influence, or pressure . . ..
(2) Commission of any act of sabotage . . . sedition . . ..
(4) Advocacy of . . . the alteration of the form of government of the United States by unconstitutional means.
(6) Intentional, unauthorized disclosure . . . of other information disclosure of which is prohibited by law, or willful violation or disregard of security regulations.
Given these clear prima facie violations of Section 3331 and Ex. Order 10540, a criminal investigation is not only clearly warranted but also legally mandated.
Statutory Authority:
Federal Oath of Office law, 5 U.S.C. Section 3331 states:
An individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services, shall take the following oath: “I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.” This section does not affect other oaths required by law.
Executive Order 10450 states in pertinent part:
WHEREAS the interests of the national security require that all persons privileged to be employed in the departments and agencies of the Government, shall be reliable, trustworthy, of good conduct and character, and of complete and unswerving loyalty to the United States; and
WHEREAS the American tradition that all persons should receive fair, impartial, and equitable treatment at the hands of the Government requires that all persons seeking the privilege of employment or privileged to be employed in the departments and agencies of the Government be adjudged by mutually consistent and no less than minimum standards and procedures among the departments and agencies governing the employment and retention in employment of persons in the Federal service:
NOW, THEREFORE, by virtue of the authority vested in me by the Constitution and statutes of the United States, . . . and as President of the United States, and deeming such action necessary in the best interests of the national security, it is hereby ordered as follows:
Sec. 6. Should there develop at any stage of investigation information indicating that the employment of any officer or employee of the Government may not be clearly consistent with the interests of the national security, the head of the department or agency concerned or his representative shall immediately suspend the employment of the person involved if he deems such suspension necessary in the interests of the national security and, following such investigation and review as he deems necessary, the head of the department or agency concerned shall terminate the employment of such suspended officer or employee whenever he shall determine such termination necessary or advisable in the interests of the national security, in accordance with the said act of August 26, 1950.
Sec. 8. (a) The investigations conducted pursuant to this order shall be designed to develop information as to whether the employment or retention in employment in the Federal service of the person being investigated is clearly consistent with the interests of the national security. Such information shall relate, but shall not be limited, to the following:
(1) Depending on the relation of the Government employment to the national security:
(i) Any behavior, activities, or associations which tend to show that the individual is not reliable or trustworthy.
(ii) Any deliberate misrepresentations, falsifications, or omissions of material facts.
(iii) Any criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct, habitual use of intoxicants to excess, drug addiction, sexual perversion.
(iv) Any illness, including any mental condition, of a nature which in the opinion of competent medical authority may cause significant defect in the judgment or reliability of the employee, with due regard to the transient or continuing effect of the illness and the medical findings in such case.
(v) Any facts which furnish reason to believe that the individual may be subjected to coercion, influence, or pressure which may cause him to act contrary to the best interests of the national security.
(2) Commission of any act of sabotage, espionage, treason, or sedition, or attempts thereat or preparation therefore, or conspiring with, or aiding or abetting, another to commit or attempt to commit any act of sabotage, espionage, treason, or sedition.
(3) Establishing or continuing a sympathetic association with a saboteur, spy, traitor, seditionist, anarchist, or revolutionist, or with an espionage or other secret agent or representative of a foreign nation, or any representative of a foreign nation whose interests may be inimical to the interests of the United States, or with any person who advocates the use of force or violence to overthrow the government of the United States or the alteration of the form of government of the United States by unconstitutional means.
(4) Advocacy of use of force or violence to overthrow the government of the United States, or of the alteration of the form of government of the United States by unconstitutional means.
(5) Knowing membership with the specific intent of furthering the aims of, or adherence to and active participation in, any foreign or domestic organization, association, movement, group, or combination of persons (hereinafter referred to as organizations) which unlawfully advocates or practices the commission of acts of force or violence to prevent others from exercising their rights under the Constitution or laws of the United States or of any State, or which seeks to overthrow the Government of the United States or any State or subdivision thereof by unlawful means.
(6) Intentional, unauthorized disclosure to any person of security information, or of other information disclosure of which is prohibited by law, or willful violation or disregard of security regulations.
(7) Performing or attempting to perform his duties, or otherwise acting, so as to serve the interests of another government in preference to the interests of the United States.
(8) Refusal by the individual, upon the ground of constitutional privilege against self-incrimination, to testify before a congressional committee regarding charges of his alleged disloyalty or other misconduct.
(b) The investigation of persons entering or employed in the competitive service shall primarily be the responsibility of the Office of Personnel Management, except in cases in which the head of a department or agency assumes that responsibility pursuant to law or by agreement with the Office. The Office shall furnish a full investigative report to the department or agency concerned.
Legal Conclusion:
The preamble of Exec. Ord. 10450 states that:
WHEREAS the interests of the national security require that all persons privileged to be employed in the departments and agencies of the Government, shall be reliable, trustworthy, of good conduct and character, and of complete and unswerving loyalty to the United States . . ..
This is meant to emphasize that work in the Federal government is a “privilege” and that he must be “reliable” and of “complete and unswerving loyalty to the United States.”
President Trump is the duly elected and installed president of the United States. Any actions which violate his legal directives is violating that “loyalty.”
In specific, Mr. X claims that he has been attempting to thwart President Trump’s directives concerning “free markets,” and “President Trump’s impulses are generally anti-trade, . . ..” Therefore, Mr. X’s stated actions to secretly disrupt the duly-elected President Trump’s policies on “trade” are a per se violation of his oath of office and violations of numerous aspects of Exec. Ord. 10450.
Under Section 6 of Exec. Ord. 10450, the threshold for the commencement of an investigation is that the offender’s actions “may not be clearly consistent with the interests of the national security.” This is a very low bar for the obvious reasons that where there is “seditious” smoke in a federal employee, there is likely “criminal” fire.
Clearly, Mr. X’s op-ed raises numerous national security issues including but not limited to possible foreign government false conclusions of an unstable or disordered chain of nuclear command.
However, at core, Mr. X’s actions clearly violated numerous core sections of Exec. Order 10450 for various discrete and overlapping reasons including but not limited to:
(1)
(i) Any behavior, activities . . . that show that the individual is not reliable or trustworthy.
Any “senior” official who makes such scandalous claims against a sitting president without first registering those claims officially is clearly “not reliable or trustworthy.”
(iii) Any . . . infamous, dishonest . . . conduct.
Secretly upending an elected President’s directives is “infamous” and “dishonest.”
(v) Any facts which furnish reason to believe that the individual may be subjected to coercion, influence, or pressure . . ..
Anyone who discovers Mr. X’s identity including the New York Times may use that information to coerce or pressure Mr. X to reveal other national security matters.
(2) Commission of any act of sabotage . . . sedition . . ..
The very act of the op-ed can be seen as sabotaging President Trump administration.
Further, Mr. X’s stated actions along with his criminal co-conspirators of thwarting a duly elected President policy objectives is likely sedition.
(4) Advocacy of . . . the alteration of the form of government of the United States by unconstitutional means.
By publishing his op-ed, Mr. X is conspiring with the New York Times to set other unconstitutional forces in motion to un seat a duly elected President.
(6) Intentional, unauthorized disclosure . . . of other information disclosure of which is prohibited by law, or willful violation or disregard of security regulations.
Mr. X’s op-ed is replete with statements which may violate federal “security regulations.”
Given these clear prima facie criminal violations, an investigation must be commenced immediately by the appropriately tasked party.