President Trump’s anger at his attorney general appears to have blown over, with the president offering a few kind words for Attorney General Jeff Sessions’ plan to crack down on what have been a series of embarrassing leaks for the White House.
“After many years of LEAKS going on in Washington, it is great to see the A.G. taking action! For National Security, the tougher the better!” the president tweeted over the weekend.
But if history is any indication, national security and leak investigation experts say the president might want to be careful what he wishes for.
“If you start trying to track down where it’s all originating from, you are going to find people in your own circle getting caught up in this,” said Bradley Moss, a lawyer specializing in national security matters.
It was President Obama’s “favorite general” James “Hoss” Cartwright who was convicted, and later pardoned, of making false statements to investigators probing the leak of top-secret details to journalists about U.S. efforts to undermine Iran’s nuclear program.
The George W. Bush-era investigation into who outed Valerie Plame as a CIA officer ultimately ensnared Lewis “Scooter” Libby, the former chief of staff to Vice President Dick Cheney. While no one was ever actually charged with leaking Ms. Plame’s covert identity to the media, Libby was found guilty of lying about his role in the leak and later had his sentence commuted.
Promises to crack down on troubling leaks are nothing new, but the Justice Department’s goal of rooting out leakers comes as the Trump administration has suffered a flood of problematic leaks, ranging from the disclosure of a classified National Security Agency document by a federal contractor to the leak of entire classified transcripts of Mr. Trump’s private phone conversations with his counterparts in Australia and Mexico.
Mr. Sessions announced that to address the “staggering number of leaks,” the Justice Department has tripled the number of active investigations, established a new unit at the Federal Bureau of Investigation dedicated to overseeing the probes, and undertaken a review of the DOJ’s current policies affecting subpoenas of the media.
“We are taking a stand. This culture of leaking must stop,” said Mr. Sessions, speaking from the Justice Department on Friday.
Without providing statistics, Mr. Sessions said the number of criminal referrals for investigations of classified leaks that the Justice Department has received from intelligence agencies in the first six months of the Trump administration is equal to the number of referrals the department received during the prior three years combined.
According to Justice Department documents obtained by Steven Aftergood, a government secrecy specialist with the Federation of American Scientists, the Justice Department received an average of 39 “crimes reports” a year concerning unauthorized disclosures of classified information between 2009 and 2016.
The number of leak cases prosecuted has historically been much lower. The Obama administration brought more leak cases — at least eight prosecutions — than all predecessors combined.
Whether leak prosecutions, which are notoriously difficult, also rise under the Trump administration will be the real test of how seriously the Justice Department is taking the threat, said Ron Hosko, a former assistant director of the FBI.
He said agents have been frustrated in the past when prosecutors opt not to bring leak charges in what could have been politically sensitive cases.
“There have been examples in the past when the FBI knows who the leaker was and the leaker was someone particularly powerful, perhaps on Capitol Hill, and the Justice Department determined they would decline prosecution,” Mr. Hosko said. “The proof of what is in the net is going to have to be evaluated six months from now.”
As part of the Justice Department’s crackdown, Deputy Attorney General Rod Rosenstein said he intends to take a “fresh look” at policies on the books regarding subpoenas of reporters. The review comes in response to issues raised by FBI agents and prosecutors. Mr. Rosenstein said Friday that he doesn’t know “what, if any, changes we will make” but he declined to provide a definitive answer when asked whether prosecuting reporters would be off the table.
Under President Obama, Attorney General Eric Holder vowed not to jail journalists. In 2015, after a dust-up with the press over the subpoena of reporters’ phone records, the Justice Department also drafted guidelines that made it more difficult to pursue such records and required high-level approval within the department.
First Amendment advocates reacted with alarm to the possibility the administration could be considering changes to make it easier to prosecute journalists or obtain their phone records or emails, with the Reporters Committee for Freedom of the Press calling the review “deeply troubling.”
“The current guidelines reflect a great deal of good-faith discussion between the news media and a wide range of interests from within the Department of Justice, including career prosecutors and key nonpolitical personnel,” said Reporters Committee Chairman David Boardman. “They carefully balance the need to enforce the law and protect national security with the value of a free press that can hold the government accountable to the people.”
The Justice Department’s approach to curtailing leaks will not be just about finding and punishing leakers.
“The investigation of a leak is too late really, the damage has already been done,” Mr. Sessions said.
Director of National Intelligence Dan Coats said part of the government’s strategy in preventing leaks will be a reevaluation of security clearance procedures and efforts to educate government employees about the proper internal channels to air concerns.
“These national security breaches do not just originate in the intelligence community, they also come from aside range of sources within the government, including the executive branch and including Congress,” Mr. Coats said. “If someone, who has access to classified material, has legitimate concerns, there are multiple ways for them to put forward a complaint.”
Mr. Rosenstein couldn’t say whether there is any indication that complaints through authorized channels are also on the rise. But he said better education of government employees about internal options, such as reporting concerns to congressional committees or inspectors general, could potentially help stem unauthorized leaks.
A campaign that focuses solely on whistleblower protections or education about internal grievance options would likely not be enough to solve the Trump administration’s problem with leaks, said Mary-Rose Papandrea, a law professor at the University of North Carolina and expert in national security leaks.
That tactic assumes leakers are low-level government employees who are trying to reveal government wrongdoing, fraud or waste, she said, rather than high-level staff officials who may be leaking to air policy disagreements.
“But so many of our leaks appear to be coming from much higher up in the food chain,” Ms. Papandrea said. “So I don’t know that more robust whistleblower protections would prevent those.”