Trump anti-leak drive could prompt prosecutions
Josh Gerstein, Bryan Bender, Politico, Feb 17 2017
This post has been updated to correctly identify blogger Richard Silverstein (sic – RB). Austin Wright and Josh Meyer contributed to this report.
Pres Trump’s threats of criminal prosecution over the flood of leaks that has plagued the early weeks of his administration may turn out to be far from empty talk. By far the most potentially serious disclosures in the view of attorneys who’ve handled such cases are the leaks of details about phone calls the NSA and/or CIA intercepted between Russian Ambassador Sergei Kislyak and just-fired National Security Adviser Mike Flynn. Northern Virginia defense attorney Ed MacMahon says:
If somebody disclosed the contents of intercepted phone conversations to a reporter, I could see a prosecution for sure. That is plainly a felony. Leaks of intelligence-related intercepts are typically treated more seriously than disclosures of other classified information. There’s a criminal statute directly aimed at that issue, imposing a potential prison term of up to ten years for each violation. But there is the question of whether a Faschingstein or northern Virginia jury would convict someone who appeared to be motivated by genuine concern that Trump aides were too close to Russian government officials. You could try a jury nullification defense, but you’re never going to get a judge to formally allow it. I think there’ll be no prosecution over the Trump talks with the Mexican President and Australian PM. It’s not clear that those leaks violate the Espionage Act. The main anti-leak provisions in that statute don’t cover all classified information, just that related to national defense. The broader category of classified information is covered by a misdemeanor statute. Leak prosecutions just depend on whose ox is being gored. The government can destroy somebody’s life in one of these cases. It just comes down to whether the government wants to prosecute the case.
The idea of jailing someone who leaks transcripts of conversations intercepted at foreign embassies is not theoretical. In 2009 Shamai Leibowitz, a Hebrew contract translator for the FBI, was charged with disclosing classified communications intelligence to Richard Silverstein, a blogger. Leibowitz was sentenced to 20 months in prison at a somewhat bizarre proceeding where the Maryland-based federal judge said he was “in the dark” about just what was disclosed and the defendant said he acted because he thought some things he saw were illegal. Silverstein later confirmed that the records he received from Leibowitz were about 200 pages of transcripts of conversations involving Israeli embassy officials. Silverstein told the NYT that he burned the records in his backyard after Leibowitz came under investigation.
Trump said at a press conference Thursday:
I’ve gone to all of the folks in charge of the various agencies. I’ve actually called the Justice Dept to look into the leaks. Those are criminal leaks.
Trump repeatedly called the leaks illegal and blamed some of them on partisan supporters of Hillary Clinton. Spoxes for DoJ & FBI declined to comment on whether any leak investigations were ongoing, but Trump indicated they were, saying:
We are looking into that very seriously.
Intelligence officials said little about the leaks, but moved aggressively to knock down reports that distrust of Trump and his team was so intense that analysts and briefers were holding back details from the White House. DCI Pompeo called one prominent report to that effect “dead wrong” in a blunt statement Thursday evening, saying:
It is CIA’s mission to provide the President with the best intelligence possible and to explain the basis for that intelligence. The CIA does not, has not, and will never hide intelligence from the President, period. We are not aware of any instance when that has occurred.
Several erstwhile boxtops called the Flynn-related leaks illegal and deplorable, although there were differences among them about how unusual the current wave of disclosures really is. Many veterans of Faschingstein and the wet jobs world doubt that the current trend is abnormal, at least by their standards, given the leakage of highly classified information on eavesdropping programs, intelligence in the lead-up to the 2003 invasion of Iraq, and many other examples. Army Lt-Gen (retd) M Hughes, a former director of the DIA (DDI) who also served as Asst Sec DHS for Information Analysis, said:
I don’t have reason to believe there is a peculiarity here that indicates something exceptional. The circumstantial timing is suspect. We just had this contentious election and we have a new president trying to get his feet under him, which makes it seem like it may be something different. But in totality this problem has been going on for many, many years in Faschingstein.
Adm (retd) J Stavridis, former SACEUR and potential VP running mate for Clinton, was interviewed by Trump as possible Sec State. He says:
I deplore it. It’s illegal. But I served six tours in Washington during my military career, and so far nothing in the content of the information shared with the media strikes me as out of the historical norm. For example, when I was military assistant to then-Sec Def Rumsfeld, the content of private phone calls was routinely leaked to the press (but by whom? – RB). I don’t see an unusual level of leaks. As far as I can tell, no sources and methods, no cryptographic tools have been revealed. I have yet to see anything that really shocks me. Snowden was shocking.
A former senior CIA official who served during multiple administrations (I’m sure this is M Morrell – RB) said:
The series of leaks has to be disturbing to everyone. In the wake of the Snowden disclosures, some who have security clearances may be desensitized to how serious it is for closely-held national security information to be so widely and egregiously shared. Maybe it is because of Snowden. But it’s too early to say whether it is ahistorical (ie unprecedented – RB), or that this leaking is out of the ordinary.
Some Congress critturs of the female persuasion (ie Demagogs – RB) said Trump appeared to be using the leak issue to divert attention from more serious questions about contacts with the Russians by Flynn and other Trump aides. Sen Claire McCaskill said:
It’s very Trumpesque that he loved leaks during the campaign and now he thinks leaks are the problem. Certainly, we don’t want anyone leaking sensitive information. On the other hand, if everyone would have just focused on ‘Deep Throat’ in Watergate, I’m not sure we ever would have gotten to the bottom of Watergate. I think the same analogy would hold here. We need to look at the underlying behavior, not just the fact that we found out about it.
Mark Warner, the ranking Demagog on the Senate Intelligence Committee, said:
Having the DIA take away a security clearance is not the result of some media leak. It is frankly remarkable that anyone even would make that claim. We need to see the transcript of that conversation.
But Sen Mike Rounds for the Rethugs decried the leaks, saying:
If the intelligence agency employees are leaking classified information, that is a serious issue and it will have to be dealt with. There is no reason why anybody in the intelligence agencies should be leaking information. It doesn’t matter what the classified information is. It’s not their responsibility to make a decision that “I will release this.”
In his epic press conference Thursday, Trump acknowledged that not all leaks are equal. He told reporters Thursday that he was not as troubled by the substance of leaks about his conversations with leaders of Mexico and Australia as by the possibility more sensitive diplomatic talks might be publicly disclosed in the future. Trump said:
I said that’s terrible that it was leaked, but it wasn’t that important. But then I said to myself, what happens when I’m dealing with the problem of North Korea? What happens when I’m dealing with the problems in the Middle East? Are you folks going to be reporting all of that very, very confidential information? I mean, at the highest level? Are you going to be reporting about that, too?
Steven Aftergood, who studies government secrecy policy for the Federation of American Scientists, said:
Any individuals determined to have leaked classified information about Trump’s calls could be fired and stripped of their security clearances. They are risking their careers, their livelihoods and their future employment. I doubt they’re risking jail, but they’re almost certainly putting their own careers in jeopardy. But even if Pres Trump and others are convinced that crimes were committed, there are many potential obstacles to any prosecution, including finding sufficient evidence to finger the leakers. In previous cases when information has been distributed widely within the government, even if it was still classified Top Secret, extended investigations have been rare, and prosecutions even rarer. One of the key questions agencies reporting leaks to the DoJ must answer is, what is the extent of official circulation of the information. Transcripts of intercepted calls have historically been minimized to remove the identities of Pindo citizens and residents, before those transcripts were passed to other agencies. Just before leaving office, Obama directed more raw intercepts to be passed to more people at more agencies. By saying unminimized records can circulate more broadly, you’re creating a new hurdle for investigators to locate the leaks.
Prosecutors also tend to take some account of a leaker’s motivations in considering whether to file charges. Judges have refused to allow defendants to argue that their conduct should be excused because the disclosures were in the public interest. Former DoJ lawyer Thomas Tamm appeared on the cover of Newsweek in 2008 (after Bush had left office – RB), confirming that he was a source for the NYT in its disclosure of Bush 43’s warrantless wiretapping program. Tamm was never charged. Such cases were a rarity in prior years, with only three filed in the course of nearly a century, but at least eight were brought under Pres Obama.