Lawfare

The Trump Administration’s Leakers Deserve to Be Investigated

But Jeff Sessions might not be up for the job.

WASHINGTON, DC - AUGUST 04:  U.S. Attorney General Jeff Sessions (R) speaks as Director of National Intelligence Dan Coats (L) listens during an event at the Justice Department August 4, 2017 in Washington, DC. Sessions held the event to discuss "leaks of classified material threatening national security."  (Photo by Alex Wong/Getty Images)
WASHINGTON, DC - AUGUST 04: U.S. Attorney General Jeff Sessions (R) speaks as Director of National Intelligence Dan Coats (L) listens during an event at the Justice Department August 4, 2017 in Washington, DC. Sessions held the event to discuss "leaks of classified material threatening national security." (Photo by Alex Wong/Getty Images)

When U.S. Attorney General Jeff Sessions and Director of National Intelligence Dan Coats held a press conference last week to condemn leaks and announce prioritization of leak investigations, they sparked predictable outrage from the both the press and opponents of the Trump administration.

The outrage is overblown. The Justice Department should be taking a hard look at leaks right now; that is a proper role and aim for the department, at least with respect to those leaks that are illegal and damaging to important government interests. Yet the press conference was disturbing nonetheless — less for the reasons so many media figures reached for the smelling salts than because of the not-so-subtle sheen of politics coloring the entire episode.

This issue is not about press freedom. The hostile response from the media reflects the press’s long-standing blind spot about leaks. Leaks are good for the press. And the press never questions, as a result, if they are good for society more generally. Conversely, leak investigations threaten sources and, depending on how they are conducted, even threaten journalists directly. They are bad for the press. And what inconveniences the press is, in the mind of the press anyway, a threat to an open society itself. Ergo, stepped-up leak investigations are bad and dangerous. This attitude is not new to the Trump era.

But the anxiety over the Sessions-Coats announcement went well beyond the typical media conflation of self-interest with the public interest. There is widespread enthusiasm among those who detest the incumbent president — not just in the press but also in the public, more generally — for anything that embarrasses Donald Trump or fuels the investigative energy that is mounting so much pressure on him. Leaks are helping drive the president’s meltdown in public approval; they are helping drive the investigations of Trump; and they form the backbone of the daily drip, drip, drip of revelation and negative coverage. Nothing that hurts Trump this much can really be bad, right?

We are, we confess, not immune to this sort of thinking. If Trump is suffering from an unprecedented torrent of leaks, as he clearly is, the blame falls first and foremost on his own shoulders. It is Trump, after all, who is attacking and telling lies about the intelligence community. It is Trump whose behavior is so extraordinary as to beg for pushback and exposure from appalled bureaucrats. It is Trump whose public lies are daily contradicted by private records that can be given to reporters. It is Trump who runs a White House staffed by extreme and often dishonorable people who detest one another. And it is Trump who gives those people no common purpose toward which to work. Most broadly, it is Trump who, even while embodying the entire executive branch, disgraces it and forfeits the respect of the bureaucracies that constitute it. Under such circumstances, leaks are inevitable.

And the leaks here are certainly serving important public purposes. Without them, retired Lt. Gen. Michael Flynn, who remained in office even after his misstatements about his meetings with Amb. Sergey Kislyak were known to the White House, might still be national security advisor. We might not know that President Trump had blown an ally’s highly classified program to the Russians. We would not know just how incompetent the president’s interactions with foreign leaders really have been. This list of public values served by these leaks is a long one. And it is not composed of trivia.

And at least some of these leaks take place without causing broader harms. If the president can’t control information about the palace intrigue in which his inner circle indulges daily, that’s not a grave public policy problem. Nor is it a great loss if he can’t prevent his aides from talking about the steps they take to manage him and his antics, as if he were some toddler who needs constant supervision. These are simply the consequences of being a terrible president: People don’t respect you, and they talk to the press. Too bad.

The trouble is that not all of the leaks fall into this benign category. And the perennial tendency of the press to deny the very real costs of important categories of leaks — not to mention the current public tendency to celebrate all leaks as a simple public good — is both self-interested and wrong. There are big costs to certain types of leaks, and we are paying those costs every day. And for that reason, the current flood of leaks, whatever public purposes they might also be serving, is deeply disturbing and corrosive of important values we expect to presidency to protect.

There are, first off, the confidentiality harms. What foreign leader will ever talk candidly to a U.S. president again without at least some fear that his or her words will end up on the internet? With Trump in relatively low-stakes talks with the president of Mexico and the prime minister of Australia, this might seem like a manageable cost. But what if foreign leaders worry about a transcript leak when discussing how to handle North Korea or what sort of military commitments to make in a crisis? Even if this particular harm is limited to the Trump presidency and is corrected when we next have reasonable and responsible presidential leadership, that could still mean years of impaired communications with leaders who genuinely have to understand one another to do business constructively in a dangerous world.

Second, it’s an old saw that leaks harm national security, but it’s really true. No, not every leak of classified information is alike. But when it leaks that we have a particular foreign official under surveillance, the leak burns an intelligence collection channel that may involve significant investment and may not easily be replaced with another. It’s bad enough that Trump told the Russians about a specific allied intelligence program with respect to the Islamic State; the leaks told the rest of the world about it, too. This same pattern plays out across dozens of leaks of genuinely sensitive materials over the past few months, and the cumulative damage is likely to be very serious. People who discount this damage are kidding themselves.

Finally, some of these leaks cause important civil liberties harms. It is easy to be dismissive of the civil liberties of Flynn or Sessions if you hate Trump enough — but it’s wrong. These are U.S. persons protected under the intelligence laws from disclosure of material collected about them or involving their communications. When people leak the contents of intercepts related to U.S. persons, they tear at the fabric of core civil liberties protections that prevent political espionage. It’s the very harm the post-Watergate reforms were meant to prevent. And even if you don’t mind the specific civil liberties violations, you should mind the erosion of the system of civil liberties protections they reflect.

For all of these reasons, it is unreasonable to expect that leaking on this scale will not trigger a ramp-up in leak investigations. And given that the Justice Department has significant investigative powers with respect to journalists — powers like compelling journalist testimony about sources and issuing subpoenas for phone records and the like — it’s also unreasonable to expect that the department’s typical restraint with those powers won’t be reviewed. These are difficult questions and ones that require periodic reevaluation.

What is disturbing in Sessions’s announcement last week, in other words, is not that he is taking leaks seriously, conducting leak investigations, or even that he is reviewing policies with respect to compelling journalists’ cooperation in such inquiries. It is that he is clearly doing so at the political behest of President Trump with his job as attorney general on the line.

This fact raises the specter not of leak investigations per se but of pretextual leak investigations and of the use of leak investigations to harass people within government who are out of favor with the President. The other day, the news website Circa published a thinly sourced smear of FBI General Counsel James Baker, suggesting he was the subject of a criminal leak investigation. No reputable news organization picked up the story, but the capacity of politically motivated leak investigations — not to mention leaks about leak investigations — to injure and intimidate innocent people in government is immense.

This current situation is a textbook example of the perils of Trump’s larger assault on the Justice Department’s independence. Leaks are an area in which there are both legitimate investigative equities and also a heightened risk of improper political retaliation. It can be difficult, if not impossible, to truly know which is which. In the past, the public has handled this sensitive space by relying on the judgment of career officials in the Justice Department who are insulated from political pressures. And we’ve relied on the political leadership of the Justice Department to provide that insulation. Now, we have a president who publicly demands his attorney general go off against anyone who has leaked information that is politically damaging to him, while demonstrating no concern over any such compromises that operate to his benefit. Trump’s underlings also violate long-standing policies against demanding specific investigations: Trump’s short-lived communications director, Anthony Scaramucci, even boasted of having contacted the FBI and DOJ following the “leak” of his publicly available financial disclosure information, in violation of Justice Department and White House protocol.

The attorney general, in his press conference Friday, stopped short of the unseemly spectacle of announcing leak investigations in specific response to the president’s demands for them. And he didn’t announce any investigations of individuals, much less the individuals Trump has specifically and publicly accused of leaking. But there is something alarming about the president demanding leak scalps and the attorney general then holding a press conference announcing a scalp-hunting project.

Sessions has stayed on the kosher side of the line so far on this. His press conference was clearly an effort to give Trump what he wants on leaks as a matter of enforcement priority without compromising the idea that the Justice Department chooses its cases and investigates them itself. But Sessions has his toes on the line on this one, and he’s playing a dangerous game — a game that requires enormous public confidence in the independence and integrity of the Justice Department and its leadership.

Photo credit: Alex Wong/Getty Images

Benjamin Wittes is editor in chief of Lawfare.

Susan Hennessey is managing editor of Lawfare.

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