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This was inspired by this question asked on Politics.SE here:

https://politics.stackexchange.com/questions/42357/can-a-us-president-have-someone-sent-to-prison

and the linked incident:

https://www.bbc.com/news/world-us-canada-48696131

where that, apparently, a journalist interviewing United States President Donald Trump was shown a letter that had been penned to him by Supreme Leader of North Korea Kim Jong-un, and the journalist received a stern warning from Trump that they could be sent to prison for taking and making off with photographic copies of the letter. Now the first linked answers say that the President "cannot just send someone to prison" and comments reference how that "bills of attainder" are Constitutionally disallowed. However it seems most if not all the answerers missed or overlooked what to me seems like an extremely crucial detail: In the recounting of events in the news report, it is said that Trump gave the journalist the letter "confidentially", which seems like it could very much change things if that declaration carries some kind of legal force.

So my questions about this incident are:

  1. What, if anything, legally constitutes "giving in confidentiality" a letter of correspondence penned by a foreign official, to someone else, by the President of the United States? Can such a thing simply be claimed by the President on a whim, or does it have to be in writing (say a "CONFIDENTIAL" stamp) on the letter in order to have legal force if it is capable of bearing such?
  2. Is wilful disregard of such a command a criminal offense, as opposed to some other category of legal infraction?
  3. If so and the President were to order criminal prosecution of this journalist in this situation for such, what would be the probability to secure a conviction under these circumstances?
  4. Does the statute criminal penalty for such putative offense include prison time, and if so, would the journalist be likely to receive it in this case under conviction, and if so, how much given precedent?
  5. What is the possible extent of collateral consequences on the offender's life for conviction for a crime under this statute (chiefly an answer to this point basically amounts to simply saying whether it's a misdemeanor or felony, since there is virtually no more nuance to such 'collateral consequences' than that pittance of a distinction under the extant legal regime, and there are too many to list, but a misdemeanor generally activates less than a felony)?
  6. Is there a reasonable argument that could be made that this law and/or exercise of it in the very specifically defined circumstances that this case represents, and in particular against a journalist, could be challenged in court, and with a significant likelihood (def: >25%) of success, on grounds of it and its enforcement constituting a violation of the First Amendment to the United States Constitution, in particular regarding the freedom of the press? If so, how, and if not, why not?

Thanks.

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What, if anything, legally constitutes "giving in confidentiality" a letter of correspondence penned by a foreign official, to someone else, by the President of the United States? Can such a thing simply be claimed by the President on a whim, or does it have to be in writing (say a "CONFIDENTIAL" stamp) on the letter in order to have legal force if it is capable of bearing such?

If you aren't formally given security clearance, you aren't subject to laws related to violating security clearance obligations.

Is wilful disregard of such a command a criminal offense, as opposed to some other category of legal infraction?

No. Also, a mere confidential classification wouldn't ordinarily be actionable as a crime, it would need a higher classification such as "top secret."

If so and the President were to order criminal prosecution of this journalist in this situation for such, what would be the probability to secure a conviction under these circumstances?

Low. Even if it were a crime there would be a First Amendment defense.

Does the statute criminal penalty for such putative offense include prison time, and if so, would the journalist be likely to receive it in this case under conviction, and if so, how much given precedent?

No. There isn't such a putative offense. Revealing secret material if you have a security clearance is a crime that carries jail and/or prison time and so far as I no there is not a U.S. Sentencing Guideline on that offense. I'd have to double check to be sure.

What is the possible extent of collateral consequences on the offender's life for conviction for a crime under this statute (chiefly that would amount to whether it's a misdemeanor or felony, since there is virtually no more nuance to such 'collateral consequences' than that pittance of a distinction under the extant legal regime)?

There are myriad collateral consequences of felony convictions that are too numerous to summarize briefly.

Is there a reasonable argument that could be made that this law and/or exercise of it in the very specifically defined circumstances that this case represents, and in particular against a journalist, could be challenged in court, and with a significant likelihood (def: >25%) of success, on grounds of it and its enforcement constituting a violation of the First Amendment to the United States Constitution, in particular regarding the freedom of the press? If so, how, and if not, why not?

Yes. Even if it were criminalized. It is already established in the Pentagon Papers case that merely publishing classified information when you weren't the person who had a legal obligation to keep it secret is not a crime. To the extent that the statute was unclear if it was applicable to a member of the press without a security clearance, void for vagueness would probably provide at constitutional issue avoiding defense.

Really, when a government official provides you with a classified document when you don't have a security clearance they have already violated the law, and you are a recipient of a leak. There is no principled reason for treating a lower level official who leaks something differently from a higher level official who leaks something. Indeed, if the President lets you see something this is arguably a de facto declassification of the document.

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    Not quite right on the Pentagon Papers case, but Bartnicki v. Vopper gets us to about the same point. – bdb484 Jun 25 at 3:02
  • However, the US government has brought charges for "soliciting" the crime in others (unlikely the particular journalist asked to be shown the letter but if they did ...) washingtonpost.com/local/legal-issues/… – Dale M Jun 25 at 3:05
  • "if the President lets you see something this is arguably a de facto declassification of the document" or, in the alternative, a breach of the law by said President. – Dale M Jun 25 at 3:06
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    @ohwilleke which is why the Assange case will be so interesting. – Dale M Jun 25 at 3:11
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    @DaleM I think that the same immunity applies. It is still an official act and within the scope of the President's authority. The President can authorize leaks to foreign governments in furtherance of U.S. foreign policy. Impeachable but probably not a crime for the President. – ohwilleke Jun 25 at 3:21

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