Omarosa is case of false friend dilemma with few legal options

The disclosure that former White House aide Omarosa Manigault Newman secretly taped President Trump and others has produced legitimate outrage. These tapes include at least one conversation with chief of staff John Kelly in the Situation Room, the White House inner sanctum where the most classified matters are discussed. Various people have called for criminal prosecution or other measures against Manigault Newman. The dilemma of the “false friends” is not new, however, and the legal options for the White House are more limited than one might think.

The problem of false friends and secret recordings have been a longstanding element of our criminal jurisprudence. The idea that nothing protects us from false friends goes back to early English law and “eavesdropping” cases. In 1952, in a case called On Lee v. United States, the Supreme Court noted that the use of “false friends, or any of the other betrayals, which are ‘dirty business’ may raise serious questions of credibility” but do not raise serious problems under the Constitution.

{mosads}Thus, a secret taping of a conversation is not itself illegal, absent other elements. One element would be if any of the conversations are deemed classified. Much of what a president discusses, particularly in places like the Situation Room, are considered classified. The secret recording or removal of classified information can be a crime.

The legal exposure of Manigault Newman follows the old real estate rule of location, location, location. It depends greatly on where she made her secret tapings. The District of Columbia is a “one party” consent jurisdiction, so it is not illegal as long as one party, in this case Manigault Newman, was a party to the conversation. It is the same law protecting former Trump counsel, Michael Cohen, who taped his own client secretly in New York, another “one party” state, and released one of those tapes in an apparent bid to attract Robert Mueller with a possible plea bargain.

Ironically, it also is the law that protected Trump after he reportedly told people he may have taped their conversations in New York. The situation becomes more dicey for Manigault Newman if she taped conversations at Mar-a-Lago, since Florida is a “two party” consent state. Absent the crossing of state lines into a two party consent jurisdiction, her actions were certainly reckless and reprehensible but probably legal.

This does not mean other sanctions cannot be applied. If she had security clearance, it should be rescinded, and she should be ineligible to hold one, or any position of trust for that matter, again. The Situation Room is a “sensitive compartmented information facility” where phones are barred for obvious security reasons. Not only could such devices be used to record or copy classified material, they could be used by foreign intelligence services as surveillance devices without the knowledge of people like Manigault Newman. Hers was a serious security breach, committed with awareness of the potential costs to the nation.

The Trump White House has used nondisclosure forms for employees, but these are civil matters, and there is considerable question whether they could be enforced. The forms state that violators could be penalized as much as $10 million for unauthorized disclosure of “confidential” information, defined as “all nonpublic information I learn of or gain access to in the course of my official duties in the service of the United States Government on White House staff.” However, such agreements are routinely violated. Take, for example, former FBI director James Comey. He signed such nondisclosure forms but has not hesitated to disclose information or to leak FBI memos to the media after being fired.

That brings us back to the problem of false friends. One must be careful whom is chosen as confidantes. Trump has chosen exceptionally poorly, with an array of characters ranging from Manigault Newman to Michael Cohen to Paul Manafort to a number of alleged mistresses. Ironically, his penchant for such associations has one curious advantage. These people have so little credibility that they are virtually useless as witnesses in investigations without ironclad corroboration from third parties.

In the case of On Lee v. United States, Supreme Court Justice Felix Frankfurter was appalled by how false friends could be effectively rewarded under the law for their deceptions and betrayals. He objected that the “contrast between morality professed by society and immorality practiced on its behalf makes for contempt of law. Respect for law cannot be turned off and on as though it were a hot water faucet.” Yet, in both criminal and noncriminal contexts, there are those who have few qualms about turning that moral faucet off and on as suits their interests.

After an embarrassing stint on a celebrity edition “Big Brother” where she gave a breathless account of being “haunted” by her time in the White House, Manigault Newman has emerged as the latest made for television creature of convenience. Indeed, reality shows are built on the false friend dilemma because people love betrayals. But the most interesting dynamic in this story is the coverage. In this case, Trump is clearly a victim.

What Manigault Newman did was wrong, but it is hard for many to accept that Trump not only needs but deserves a level of confidentiality and trust in his communications. Indeed, the White House has pushed back on efforts by Congress and the special counsel to gain more information on its internal discussions. Manigault Newman is the poster child for those who want the courts to curtail such disclosures. Her exposure of confidential settings and communications is likely to be referenced in the litigation as the new reality for presidents absent stronger protections.

However, Manigault Newman is less of a legal problem than a political one for Trump. She is entertainment, which is precisely why a reality television star turned president takes her so seriously. This week, Trump tweeted that while he knows it is “not presidential” to take on a “lowlife like Omarosa” and would rather not be doing so, “this is a modern day form of communication and I know the Fake News Media will be working overtime to make even Wacky Omarosa look legitimate as possible. Sorry!”

It is certainly not presidential. It is part of the sad reality that television shows, from “Big Brother” to “The Apprentice” to “The Kardashians,” have created. Manigault Newman is just another oddity of modern Americana. She is the personification of a culture in freefall where Kim Kardashian is paraded into the Oval Office on matters of criminal justice and lawyers like Michael Cohen release gotcha tapes on primetime shows.

The problem is not the lack of criminal penalties but the lack of shame in our society. Friendships and honor used to be controlling concepts before the death of shame. Manigault Newman dwells within a new shrine to celebrity status where shame is but a quaint and quixotic relic of the past.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.