If there has been one constant in President Donald Trump’s administration, it is the steady stream of leaks of classified information.
As investigators dig into questions surrounding Trump, his team and Russian interference in the 2016 election, the tension between whether leaks or Kremlin actions and potential ties to the campaign should be the central focus will remain at the forefront.
What could happen to those who leak — and to the reporters they share classified material with?
FBI Director James Comey told last week’s House Intelligence Committee hearing on Russian interference that the agency is investigating whether there was any coordination between Trump’s campaign and Russia to interfere in the election. Committee Republicans, however, devoted much of their time to questioning the witnesses on leaks of classified information.
Notably, Rep. Trey Gowdy (R-SC) asked Comey about several issues related to leaks, from what exceptions exist in the law for reporters to raising specific names from the Obama Administration as potential sources of leaked information.
Trump’s first National Security Advisor, Michael Flynn, resigned less than a month into the administration in the wake of leaks showing he had lied about his conversations with Russian Ambassador Sergey Kislyak.
House Intelligence Chairman Devin Nunes (R-CA), who had served as a member of Trump’s transition team, said during his opening statement that the question of leaks is one of the key issues of the Russia investigation he heads.
“We aim to determine who has leaked or facilitated leaks of classified information so that these individuals can be brought to justice,” he said.
“I think that’s very important and I couldn’t agree more with the Chairman. But we can’t let the investigation into leaks overshadow the investigation into Russian interference in our election and whether they were helped - in any way - by American citizens,” former CIA Acting Director Michael Morell told The Cipher Brief.
Trump, meanwhile, frequently uses his Twitter account to rail against leaks. He’s accused intelligence agencies of allowing information to be leaked to the public, asking, “Are we living in Nazi Germany?” He has specifically berated the FBI, saying the agency “is totally unable to stop the national security ‘leakers’ that have permeated our government for a long time.” In response to reports his campaign was frequently in touch with Russian officials, he tweeted, “the real scandal here is that classified information is illegally given out by ‘intelligence’ like candy. Very un-American!” During the campaign, Trump sang a different tune, saying he loved leaks.
However, with the President’s focus on the problem of leaks since he entered office, coupled with his frequent lashing out at the press, there are concerns over how journalists could be targeted as leaks are investigated.
“There has been this stark line that the Department of Justice has historically drawn between the government official who leaks the information and the media outlet that publishes it. I would not necessarily expect President Trump to respect that line,” Elizabeth Goitein, who co-directs the Brennan Center for Justice's Liberty and National Security Program, said.
Investigating a leak
What would an individual being “brought to justice” for leaking classified information involve? The Cipher Brief Network Expert Mark Kelton, the former CIA Deputy Director of the National Clandestine Service for Counterintelligence, said the first step is formally reporting the leak. A crimes report will be filed by the agency that “owns” the classified information — and usually a lawyer or the general counsel will submit that to the Justice Department.
“And then the investigation will begin, or a decision will be made on whether to investigate, depending on what resources are available,” Kelton said. “A lot of these crimes reports get filed, it’s pretty common.”
As Kelton noted, “it’s a crime to leak classified information,” and those charged with leaking classified information “are people who should be able to have classified information in their possession and of course are sworn to protect that,” he said.
The FBI and Justice will decide if there is enough to warrant committing investigative assets to the case, and whether there is a reasonable chance the source of the leak can be located.
"An investigation, of course, is a criminal matter. So the owning agency has very little transparency into it,” Kelton said. “Once you turn it into DOJ and the FBI, that’s a criminal matter and the FBI mounts an investigation to see who leaked the information.”
Investigators will examine who had access to the information and then try to piece together who may have passed it on.
“That can take a long time — sometimes, and in fact in most cases, it’s impossible to determine, because information can go through so many hands. That’s particularly true of information that is politically charged or a policy change that is going to have significant impact or where there is a contentious debate going on about national security issues,” Kelton said.
Cipher Brief Network expert John Sipher, who retired in 2014 after a 28-year career in the CIA’s National Clandestine Service, recently wrote that “from my experience, the great majority of Washington leaks come from the White House and Congress, not from inside the intelligence community.”
Whistleblowing versus leaking
Most government employees are covered by the Whistleblower Protection Act, which can provide protection against adverse personnel action even if someone goes to the press. The law does not apply to Intelligence Community personnel, though, or to classified information. No protections exist in any law for IC employees or contractors who go to the press, and it is a crime to leak classified information. The government has several criminal statutes it can use against those who do so, such as the Espionage Act of 1917.
The protections against retaliation that do exist for the IC are found in the Intelligence Community Whistleblower Act of 1998; Presidential Policy Directive 19, signed in 2012; and the Intelligence Authorization Act for Fiscal Year 2014. They only apply, though, in the case of a whistleblower following the proper channels, and there is no whistleblower protection against criminal prosecution.
Proper channels for IC workers to make protected disclosures include the worker’s supervisor, up to and including the agency head, inspectors general, ombudsmen, and the Director of National Intelligence, as well as the intelligence committees of Congress — not the media.
“Whistleblowing is sometimes infused with a moral judgment, but in the legal aspect, no — it must be done through proper channels and you have to blow the whistle on fraud, waste, abuse, or other illegal conduct,” a senior congressional aide who works on intelligence issues previously told The Cipher Brief. “We want to protect people who do blow the whistle, we rely on them, but that’s very different than leaking information because you disagree with policy or its legitimacy because it was potentially illegal.”
Leaks and the media
But what about the journalists who write the stories when a government insider comes to them with secret information?
The Obama Administration subpoenaed New York Times reporter James Risen in an attempt to get him to reveal his sources, while Fox News reporter James Rosen was named in a leak investigation as a possible “co-conspirator.” After the Rosen incident, the Department of Justice undertook a review of its practices related to journalists.
Goitein said she would be “surprised” if the Trump administration “went as far as prosecuting a journalist for the journalist’s own disclosure — which would be consistent with the words of the statute that Trey Gowdy was getting at when he said the statute says ‘publish.’”
Gowdy asked a series of questions during the Monday hearing about U.S. Code language on disclosure of classified information, which states anyone who knowingly leaks — “or publishes” — classified information that harms the United States or benefits a foreign government can be both fined and imprisoned.
Government officials essentially sign a contract as a condition of access to classified information and agree to a certain curbing of their own First Amendment rights in vowing to not share that information. That’s not true of a journalist, though, so the First Amendment implications of using that statute against the press would be extremely profound, Goitein said.
At last week’s hearing, Gowdy asked Comey, "Is there an exception in the law for reporters who want to break a story?"
Comey replied, "Well that's a harder question as to whether a reporter incurs criminal liability by publishing classified information and one probably beyond my ken."
“I know the department struggled with it, the 4th Circuit struggled with it, lots of people have struggled with it but you're not aware of an exception in the current dissemination of classified information statute that carves out an exception for reporters,” Gowdy said.
Comey noted that he was not “aware of anything carved out in the statute” and that no reporter has been prosecuted under the law Gowdy cited.
“Well, there've been a lot of statutes that bore on this investigation for which no one's ever been prosecuted or convicted and that does not keep people from discussing those statutes, namely the Logan Act,” Gowdy said, citing a 1789 law no one has ever been prosecuted under that bars private citizens from trying to influence a foreign government “without authority of the United States.”
Trying to prosecute a journalist for conspiring with a leaker — essentially, assisting the leaker in violating the Espionage Act — would be a “more likely” move than using the statute Gowdy mentioned, Goitein said, even though it would face some of the same First Amendment issues.
Those are the grounds on which the Obama Administration Justice Department sought access to Rosen’s communications.
“They filed an affidavit when seeking access to those communications and in the affidavit essentially accused James Rosen of being a co-conspirator with the leaker,” she said. “And I think the idea that the journalist is somehow assisting the leaker might sort of feel like less of a leap than actually going and charging the journalist with violating the Espionage Act him- or herself.”
“That said, I think the First Amendment analysis should not be any different and there’s a reason why no prosecution has ever been brought against a journalist,” Goitein added.
Mackenzie Weinger is a national security reporter at The Cipher Brief. Follow her on Twitter @mweinger.
