Omorosa's Actions: Lawful Or Unlawful?

In 2018, Omarosa Manigault Newman, former White House aide, released secret recordings of her conversations with Donald Trump and his chief of staff, John Kelly. The tapes, which were aired on NBC's Meet the Press and Today program, included a recording of Kelly firing her in the White House Situation Room in 2017. While Manigault Newman admitted to secretly recording her firing, the question of whether she broke the law is less clear.

Legality of recording in the District of Columbia

In the District of Columbia, an individual may record or disclose the contents of an in-person or phone conversation if they are a party to the communication or have received prior consent from one of the parties. This is known as a "one-party consent" law.

The District's wiretapping law states that it is a criminal offense to use any device to record communications, whether wire, oral, or electronic, without the consent of at least one person taking part in the communication. However, recording is allowed to take place if there is no reasonable expectation of privacy, such as in a public place like a street or park.

There is no need to obtain consent to record conversations held in public places, where there is no reasonable expectation of privacy. This includes recording government officials engaged in their duties in a public place, which is generally protected by the First Amendment right.

The District's voyeurism law prohibits secretly taking images of people in private settings and distributing them without consent. This includes recording a person using a bathroom or restroom, changing clothes, or engaging in sexual activity without their consent when there is a reasonable expectation of privacy.

Recording or distributing the contents of any recordings of communications made without proper consent can result in criminal penalties, including a fine of up to $12,500 or imprisonment for up to five years, or both. Violating the District's voyeurism law is a misdemeanor punishable by up to a year in prison and fines of up to $2,500.

Violation of administrative rules

In the District of Columbia, it is required that staffers leave their cell phones or any other unsecured electronic devices outside the White House Situation Room. This is to ensure the security of the room. If a staff member brings in a device that can record what goes on in the room, it is considered a violation of administrative rules, but not a crime.

Mark Zaid, an attorney who specializes in national security cases, told USA Today that a person who accidentally brings in a device could lose their security clearance. If it happens a second time, they would lose their clearance. Zaid also stated that knowingly making a recording in a secured area is an administrative violation, but still not likely a legal matter.

Zaid further explained that intentionally recording in the Situation Room is a significant escalation, as it is intentional and therefore a major security violation. However, he noted that he had not seen any applicable criminal laws that could be reasonably applied to this situation.

Bringing a recording device into the Situation Room is a violation of strict internal procedures, as external devices are prohibited to keep foreign enemies or spy services from hacking in and listening to sensitive information. This incident has raised concerns about the security culture within the Trump administration, with some noting that Trump has "mocked" the idea of a security culture.

Espionage Act violation

In 2018, Omarosa Manigault Newman, former White House aide, released secret recordings of her conversations with Donald Trump and his chief of staff, John Kelly. She also revealed that she had secretly recorded White House chief of staff John Kelly firing her in December 2017 in the White House Situation Room.

Some have suggested that Manigault Newman's actions violate a federal statute (18 U.S.C. §793) that addresses "Gathering, transmitting or losing defense information." This statute falls under the Espionage Act of 1917, which was enacted shortly after the United States entered World War I. The Act prohibits the gathering or transmitting of defense-related or national security-related information.

However, legal experts argue that Manigault Newman's recordings likely do not fall under the category of national security. Stephen Vladeck, a law professor at the University of Texas who specializes in national security and constitutional law, stated that if Manigault Newman had recorded classified material, it would be a violation of the Espionage Act. He also noted that there is a distinction between recording sensitive information and recording a conversation in a secured area.

While Manigault Newman's actions may have violated administrative rules and potentially committed a "technical crime," it is unlikely that she violated the Espionage Act as the information she recorded does not appear to be related to national defense or classified material.

Misappropriating a government record

In the District of Columbia, it is legal to record a conversation as long as one of the participants is aware that the recording is taking place. However, in the case of Omarosa Manigault Newman, who secretly recorded her firing by White House Chief of Staff John Kelly in the White House Situation Room, the situation is more complex. While it may not be a crime, bringing an unsecured electronic device into the Situation Room is a violation of administrative rules and a major security breach.

Mark Zaid, an attorney specializing in national security cases, stated that while it is not likely a legal matter, it is certainly an administrative violation. He also pointed out that there is a law against misappropriating a government "record," and the recording could be considered a “record” in this context. However, he believed it was highly unlikely that the government would pursue legal action.

In law, misappropriation is defined as the unauthorized use of another person's property, discoveries, inventions, etc., resulting in harm to that person. It often refers to the intentional and illegal use of property or funds, particularly by a public official. In the context of Omarosa's case, the potential misappropriation lies in the unauthorized recording and release of a conversation that took place in a secure government facility, which could be considered a government record.

While the consequences of misappropriation can be severe, including imprisonment, fines, probation, and a permanent criminal record, the specific penalties depend on the jurisdiction and the value of the property involved. In Omarosa's case, while there may be a technical violation of the law regarding misappropriation of a government record, it is unlikely that she would face criminal charges. However, her actions could impact her ability to obtain a security clearance in the future if she were to pursue work for the federal government again.

Security clearance and future implications

The White House Situation Room is a highly secure facility, and bringing recording devices into the room is a violation of administrative rules. Mark Zaid, an attorney specializing in national security cases, stated that accidentally bringing a device into the room could result in the loss of security clearance, and doing so a second time would lead to a revocation of clearance. Intentionally recording in a secured area constitutes a significant violation and would likely result in the loss of security clearance. Zaid noted that while it is a major security violation, he had not seen a criminal law that could be reasonably applied in this situation.

Omarosa Manigault Newman's actions in secretly recording her firing in the White House Situation Room have raised questions about the security clearance she held and any potential future implications. It is unclear if Omarosa had a security clearance, and if so, what level it was. However, her actions could impact her ability to obtain security clearance in the future. Zaid stated that Omarosa, having been fired, had already lost her security clearance. He added that if she ever reapplied for security clearance, she would face challenges due to her violation.

The potential impact on Omarosa's future security clearance was also highlighted by Juliette Kayyem, a former assistant secretary for intergovernmental affairs in the Department of Homeland Security. Kayyem pointed to the lack of a "security culture" in the Trump administration, noting instances where White House staffers worked without proper security clearances. She emphasized that Omarosa's use of a recording device presented counterintelligence risks, as foreign agencies could potentially hack the device and access all conversations, not just the recorded firing conversation.

In addition to the security clearance concerns, Omarosa's actions could also impact her future employment prospects in the federal government. Bradley Moss, a national security lawyer, stated that the violation of bringing a recording device into the Situation Room would likely be enough to deny her security clearance if she ever seeks federal government employment again.

While the legal implications of Omarosa's secret recording are still debated, the security clearance and future employment implications are significant. Her actions in the White House Situation Room have compromised her ability to obtain security clearance and may impact her future career prospects in government or other secure environments.

Frequently asked questions