The Law of Leaks

Ken AshfordL'Affaire Russe, Trump & Administration, White House SecrecyLeave a Comment

Today is the day two story of the Flynn resignation and the White House wants us to focus on a different aspect of the story: the rampant leaks from the intelligence community.

But for perspective, let’s start off with Trump’s most interesting morning tweet:


During the campaign, Paul Manafort and Carter Page (Trump’s campaign manager and foreign policy adviser, respectively) were let go because of their Russia connections, and Mike Flynn (Trump’s national security adviser) was let go this week (due to “trust issues” says the White House, but trust issue surrounding his lying about speaking with Russia).

Seems like Trump is letting a lot of people go because of what he calls “FAKE NEWS”. And if the leaks are about “fake news”, I wonder why he’s calling them “leaks” at all. Is the intelligence community “leaking” secret information which are lies? Is that his point? There’s a bit of a disconnect there.

But Trump is on a rampage.

Ok.  Well, let’s talk about the price for leaking.

The cornerstone of anti-leak law is a provision of the Espionage Act of 1917, codified at 18 U.S.C. § 793, which criminalizes improperly accessing, handling, or transmitting “information respecting the national defense” with the intent of injuring the United States or aiding a foreign nation. Under Supreme Court precedent, “national defense information” is broadly defined and includes sensitive information relating not only to the military, but also to national security more generally. As Professor Patricia Bellia notes, while “the phrase ‘national defense information’ used throughout §§ 793 and 794 is not coterminous with the phrase ‘classified information,’” nevertheless “a document’s classification status could provide evidence that the document was closely held or that the document, if transmitted, would injure the United States or aid a foreign nation.”

Later amendments added 18 U.S.C. § 798, criminalizing the disclosure of various kinds of classified information including information “concerning the communication intelligence activities of the United States or any foreign government.” Section 798 contains no explicit intent requirement: in order to violate that provision, one need only “knowingly and willfully” communicate the information. Notably, this is the provision of the law which FBI Director Comey famously determined Hillary Clinton did not violate, despite demands for prosecution from President Trump and other political opponents. While the law facially allows prosecution for mere gross negligence, in reality it does seem to require some degree of intent.

The other law that often forms the basis of leak prosecutions is the general theft statute at 18 U.S.C. § 641. This provision makes it a crime to steal, sell, or convey “any record, voucher, money, or thing of value of the United States or of any department or agency thereof.” The federal courts of appeals differ on applying this statute to leaks of government information: while all of the circuits recognize the government’s property interest in records and documents (so if you physically steal actual records, the statute most certainly applies), some refuse to extend that to the underlying information contained in the records.

Other laws criminalize more specific leaks. The Intelligence Identities Protection Act, for instance, makes it a crime to reveal the identity of covert agents. Former CIA officer John Kiriakou was indicted under this act and the Espionage Act for leaking classified information relating to the CIA’s detention and interrogation program. He pled guilty in 2012 and was the first CIA officer to serve a prison sentence for leaking. This is also the substantive offense at the heart of the Plame affair, discussed below.

And beyond those substantive offenses criminalizing leaking itself, there’s the crime of making false statements. Under 18 U.S.C. § 1001, it is a felony offense to “knowingly and willfully . . . make[] a materially false” statement in the course of an investigation by any branch of the federal government. So if you lie about a material fact in the course of a leak investigation (see more below on investigations), you’ve committed another substantive felony, and one that is very frequently prosecuted.

This provision is used far more frequently than the others, in part because of the aggravating nature of lying to law enforcement and in part because the offense is easier to prove. As the saying goes, it’s not the crime, it’s the coverup.

For example, the high-profile leak investigation of the naming of covert CIA operative Valerie Plame might have involved the Intelligence Identities Protection Act, but prosecutors ended up indicting Scooter Libby, Vice President Cheney’s chief of staff, on multiple counts of obstruction of justice, perjury, and making false statements. As The Washington Post reported at the time, the U.S. Attorney on the case “noted that proving illegal disclosure of classified information under various federal statutes is difficult,” in part because many require proving specific knowledge or intent.

Besides criminal violations, the government also employs non-disclosure agreements.  Often these involve pre-publication review: if you are a former intelligence officer, and you’re writing an article or book, you need to run it by the intelligence agency per the NDA.

Aaaaand that’s it, really.

Here’s something else worthy of note: leak investigations are overseen by DOJ’s National Security Division and conducted by the FBI. In a 2006 interview, David Szady, former assistant director for counterintelligence at the FBI, outlined how leak investigations proceed. First, the “victim agency” (the owner of the classified material) refers the matter to the Department of Justice, who decides whether to open an investigation. Importantly, investigations are opened only when the leaked information is accurate—that is, the mere fact of an investigation is an indirect confirmation of the accuracy of the leak. DOJ then sends the file to the FBI, who conducts the actual investigation, typically reviewing documentation and signals intelligence but sometimes through interviews and polygraphs.

There is something troubling about the intelligence agencies working against the President as many Democrats and Republicans have pointed out.  I certainly agree, but this does not strike me as an all-out war between the intelligence community against Trump.

It is certainly not a slow-motion coup d’etat as some say.  And look, If the information about the Trump campaign’s apparent collusion with the Russians were not leaked, it would have been smothered and covered up. Congress refused to act. The Department of Justice has shown zero interest. The president’s occasional remarks about the matter carry all the conviction of O.J. Simpson’s vow to search for the real killers.

What, exactly, were investigators supposed to do with their information if they did not share it with the public? Evidence that close associates of the current president of the United States had contacts with a hostile foreign-intelligence service is not a matter of purely historical interest. It’s not just a law-enforcement matter. The whistle blowers are blowing whistles, at immense professional and legal risk to themselves, because the people in charge of protecting the system against foreign spy penetration are themselves implicated in that penetration.

Besides, if they could bury Trump, they would have done so long before the election.  And even as it related to Flynn — when they knew Flynn was lying to Veep Pence about his Russia contacts, they went to Obama (still President) and THEN TO TRUMP.  That doesn’t sound like an intelligence community out to subvert President Trump.  In fact, Trump seems to have his own feud with the intelligence community, often degrading their “intelligence” by using quotation marks (as I just did).

During the campaign, Trump often bragged that he had better intelligence than the generals, a comment that was dismissed as bizarre.  But perhaps not.  Perhaps Trump has been the beneficiary of Russian intelligence (although its accuracy has yet to be determined).  Perhaps Trump is the Manchurian candidate who doesn’t know he is Manchurian.