Could Omarosa Be Prosecuted for Leaking Secret Recordings?

Omarosa’s recording of John Kelly was a “significant violation of security protocols,” national security law expert Mark Zaid tells TheWrap

In a three-day media blitz, former White House aide Omarosa Manigault-Newman has been leaking secretly recorded audio tapes, some of which she made while inside the most secure recesses of the White House — and it all appears to be perfectly legal.

Multiple legal experts told TheWrap this week that while Omarosa’s actions may have been duplicitous and underhanded, anyone expecting criminal charges will be waiting a long time as it is perfectly legal in Washington, D.C., for one party in a conversation to record it — even without the permission (or knowledge) of the other parties.

“She’s not going to jail. She’s not facing any charges, the reason being that Washington, D.C., is a one-party consent state,” David S. Weinstein a former federal prosecutor and attorney at Hinshaw & Culbertson LLP told TheWrap Tuesday. “There is no criminal statute that she is violating.”

That’s even true when she recorded Chief of Staff John Kelly firing her in the White House situation room, widely used as a Sensitive Compartmented Information Facility (SCIF) — a special designation given to areas where the most highly classified information can be discussed.

“What she did, however, in bringing in an electronic recording device into a SCIF … is a significant violation of security protocols,” Mark Zaid, an attorney specializing in national defense and First Amendment law, told TheWrap.

“That violation is compounded by the fact that she actually recorded conversations in a secure room. But neither of those security violations are criminal in nature,” he added, noting that Omarosa probably would not be a front runner for receiving security clearance in the future.

Such rooms explicitly forbid recording devices and telephones — and it’s unclear how Omarosa managed to execute such a clean recording. “She clearly had a recording device in there,” Weinstein said. “Given technology, it would appear in all likelihood it wasn’t a phone.”

Since her Sunday appearance on “Meet the Press,” Omarosa has released a new recording each day, perfectly timed to coincide with the morning news cycle.

In addition to her situation room talk with Kelly, the former “Apprentice” star also picked up President Trump saying he has no idea she had been fired and numerous White House staffers discussing how they would handle a potential audio recording of President Trump saying the N-word. (No such recording has been identified.)

With her book rising on Amazon charts, and more tapes looming, the Trump campaign announced Tuesday it would file for legal arbitration against Omarosa accusing her of violating a non-disclosure agreement with the campaign.

That maneuver, however, seems unlikely to fly. “They’re trying to shut her up,” Barry Covert, a criminal defense attorney and expert on First Amendment law, told TheWrap. “Generally, any nondisclosure agreement like this is going to be very hard to enforce.”

“Courts will be leery of limiting her First Amendment speech with respect to information that is not related to national security,” he added. “They’re trying to scare her financially.”

Omarosa, a former Democrat who had worked in the office of Vice President Al Gore in the 1990s, appeared on three seasons of “The Apprentice” — and also starred in a Trump-produced reality dating show called “The Ultimate Merger.”

During Trump’s 2016 campaign, she frequently appeared as one of his most outspoken surrogates and defended him against virtually any charge. After he became president, she found herself in the White House leading communications for the office of the Public Liaison and taking home a plum salary of more than $179,000 a year.