Going After The Leakers: DOJ Gets Its First Scalp

Ken AshfordConstitution, Trump & AdministrationLeave a Comment

Federal prosecutors announced they were indicting James Wolfe, the former security director for the Senate Intelligence Committee, of lying to FBI agents in December 2017 about his contacts with three reporters, including through his use of encrypted messaging applications. According to the indictment, Wolfe made false statements to the FBI about providing two reporters with non-public information related to the matters occurring before the committee.

The indictment provides a detailed account of Wolfe’s interactions with one specific unnamed reporter. Prosecutors say Wolfe eventually admitted to being in a personal relationship with that reporter, dating back to 2014.

Yet he “maintained that he had never disclosed to REPORTER #2 classified information or information that he learned as Director of Security for the (Committee) that was not otherwise publicly available.”

The indictment also alleges Wolfe passed sensitive Intelligence Committee information to Watkins and at least two other reporters. It’s not clear whether any of that information was classified, and Wolfe has not been charged with mishandling classified information.

There is no law against leaking sensitive government information that is not classified.
In a joint statement last evening, Senate Intelligence Chairman Richard Burr, Republican of North Carolina, and Vice Chairman Mark Warner, Democrat of Virginia, called the news troubling.

“While the charges do not appear to include anything related to the mishandling of classified information, the Committee takes this matter extremely seriously. We were made aware of the investigation late last year, and have fully cooperated with the Federal Bureau of Investigation and the Department of Justice since then,” they said.

“This news is disappointing, as the former staffer in question served on the Committee for more than three decades, and in the Armed Forces with distinction. However, we trust the justice system to act appropriately and ensure due process as this case unfolds. This will in no way interfere with our ongoing investigation, and the Committee remains committed to carrying out our important work on behalf of the American people.”

Also troubling is HOW the DOJ got to this guy: buy seizing reporter records. Specifically, it seized telephone and email communications records for New York Times reporter Ali Watkins earlier this year as part of its investigation.

It’s the first known case of DOJ seizing a reporter’s records under the Trump administration. The DOJ did not negotiate with Watkins before seizing her records, according to the Times, and it’s not clear whether officials exhausted other avenues.

“Freedom of the press is a cornerstone of democracy, and communications between journalists and their sources demand protection,” New York Times spokesperson Eileen Murphy told the paper.

A contrary view:

Having read through the entire indictment of James Wolfe, I have to say that the feds were justified in taking the extreme step of looking at New York Times reporter Ali Watkins’s electronic records. I don’t say this lightly, and I’m not convinced that they did everything correctly in this case, but the behavior of Wolfe constituted a legitimate national security risk warranting an override of the presumed reporter/source privilege.


A significant part of the controversy here is that Ms. Watkins was not given “appropriate notice” that her electronic records were being turned over to the FBI. The attorney general must have determined that notifying her would be a threat to the investigation and to national security. I can’t judge the risk to the investigation, but the “grave harm” element is clearly present.

I think anyone who is prepared to say this breach of the reporter/source privilege is acceptable needs to define precisely why they feel that way so that it’s clear what is notacceptable. With the caveat that I’m uncertain why Watkins couldn’t be notified, the reason I believe her records were fair game is because of the unique position that Mr. Wolfe held and long period of time he held it. It was not enough for him to be fired or to resign, and he had not resigned when the information was initially sought. A retroactive damage assessment needed to be done, and Wolfe’s cooperation was an essential component to getting a thorough assessment. And, beyond plugging the leak and figuring out the extent of his leaking, the facts were important for restoring a functional oversight role for the intelligence committees.

This is not an ordinary case, and it was unlike a situation where a political appointee at the State Department is leaking to reporters. That appointee will not be there for 29 years and their behavior doesn’t implicate Congress’s ability to conduct oversight.

For these reasons, I reluctantly approve of the extraordinary measures that were taken in this case. But I definitely worry about the risk it will set a precedent for other cases that don’t have the same merits.