Former White House aide Omarosa Manigault Newman shocked many over the weekend when she revealed that she had secretly recorded White House chief of staff John Kelly firing her in December 2017.
She released that tape on Sunday, saying that she surreptitiously recorded the firing that took place in the White House Situation Room – considered one of the most secure rooms on the planet.
Manigault Newman said she recorded the conversation because she feared for her safety and because, "If I didn't have these recordings, no one in America would believe me.”
While Manigault Newman admitted to secretly recording her firing, but did she break the law?
Here’s a look at what she did and what the consequences could be.
What did she do?
According to Manigault Newman, she recorded Kelly firing her from her job as White House aide. She was taken into the Situation Room, where Kelly told her she was fired.
How did she record the conversation without Kelly knowing it?
Manigault Newman is not saying. Some assume it was by cell phone, perhaps in a purse or pocket. Others are saying she used a pen that records audio.
What is the Situation Room?
The White House Situation Room is a secured facility in the basement of the White House. It’s classified as a “sensitive compartmented information facility,” or a SCIF, and security in the area is stringent.
The complex is 5,500 square feet and divided into seven rooms. It was a courtyard when President Franklin Roosevelt was in the White House and became a bowling alley when President Harry Truman lived there. President John F. Kennedy wanted a secure area of the White House so he had the area renovated in 1961 and used it for a space to coordinate reaction to national security crises.
During George W. Bush’s presidency, the Situation Room was remodeled and the wooden paneling was removed and replaced with more high-tech material.
The room is staffed primarily by the National Security Council Secretariat (NSCS). Five "watch teams" of five to six people each, 24 hours a day, seven days a week monitor international events and are able to brief the president about what is going on at any time of the day.
Was it legal to make a secret recording of Kelly?
In the District of Columbia, it is legal to make a recording of a conversation as long as one person involved in the conversation is aware it is being recorded.
Was it legal to make a secret recording of any kind there?
Staffers are required to leave cell phones or any other unsecured electronic device outside of the situation room to ensure the security of the room. If you bring in a device that can record what goes on in the room, it is 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, and if it happens a second time, Zaid said, they would lose their clearance. Knowingly making a recording in a secured area is certainly an administrative violation, Zaid said, but is still not likely a legal matter.
“Now if you're recording, that is ratcheting up the level significantly because now it's intentional, so it's a major security violation for sure," he told USA Today. "But I've not seen anyone identify a (criminal) law that can reasonably and practically be applied to this type of situation."
Did she violate the espionage act?
Some have suggested it violates a federal statute (18 U.S.C. §793) that addresses, “Gathering, transmitting or losing defense information.” The law applies to defense-related or national security-related information. Manigault Newman’s firing would not likely 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, told Vox that if Manigault Newman had recorded classified material, it would be another matter.
“It’s a crime to record or share sensitive information that you’re not legally authorized to have, and so there’s no doubt that a recording of a discussion of information that is classified would violate the Espionage Act. But there’s no evidence, as of now, that this has happened here.”
Zaid pointed out that there is a law against misappropriating a government "record." The recording would be the “record” in this case, but he said it would be highly unlikely that the government would proceed with such a case.
“There is likely a technical crime or two that’s been committed here," Vance said. "Obviously, prosecutors don’t choose to prosecute every technical crime that’s been committed, but she probably should get herself a lawyer and be in consultation.”