No president like leaks. Yet no president can stop them.
Ever since there’s been a media, there have been people willing to speak off the record in ways that embarrass their boss. Even the most disciplined administration can’t shut off every leak, and most presidents grudgingly accept this kind of public disloyalty as an occupational hazard.
But President Trump is no ordinary president. He refers to leaks as “illegal leaks” and even “criminal leaks.” He’s demonstrated time and again that he is no friend of the First Amendment, and that he is willing to use the force of law (remember his campaign promise to “open up our libel laws”?) to crack down on leakers and put them behind bars.
Yet a free press keeps presidents in check by saying things that Donald Trump doesn’t like. That same freedom also allows people working in the White House under Trump to tell the press – to “leak” – even things that the president would rather they didn’t know.
A grey area when it comes to classified information
At the same time, there is a grey area involving classified information that could, in fact, constitute a criminal leak. According to Mary-Rose Papandrea, a law professor at the University of North Carolina, “it is quite likely that eager prosecutors could find a statute to cover most leaks relating to intelligence activities.” There are many such statutes.
LawFare writers Susan Hennessey and Helen Klein Murillo review the relevant criminal statutes that could be applied to leakers. Most notably, there is the 1917 Espionage Act, which prohibits the transmission of “information respecting the national defense.”
Courts have interpreted this language rather broadly, although they also require some malicious intent on the part of the leaker. You’ll recall that that critical aspect of mens rea was the primary reason that former FBI Director James Comey declined to prosecute Hillary Clinton: Her “extremely careless” handling of classified information was unintentional, and therefore not likely to result in a criminal conviction.
What about statutes involving theft?
Some leaks have been subject to prosecution under a general theft statute that prohibits the stealing or selling of “any record, voucher, money, or thing of value of the United States or of any department or agency thereof.”
This is usually applied to physical objects, not information. So one who handed a classified document to another could be prosecuted. But a leaker who merely told another what was in the document, without providing them with an actual copy, would not be subject to prosecution, according most readings of the statute.
And there’s the Intelligence Identities Protection Act. This law took center stage during the Bush administration over the Valerie Plame-Joe Wilson episode. Karl Rove was accused, and later cleared, of outing an undercover CIA agent.
Another statute makes it a crime to intentionally make “a materially false statement” in the course of an investigation. it was this law that got I. Lewis “Scooter” Libby a felony conviction over the Plame-Wilson affair, although the portion of his sentence imposing 30 months’ jail time was commuted by President Bush. Lewis, however, wasn’t convicted for outing Plame, but rather for lying to investigators during the process.
Still, applying this criminal standard to leaks in general is somewhat problematic, as statements to the media aren’t held to the same legal standard as statements under oath.
Are non-disclosure agreements a solution?
The other area in which leaks can become illegal is when the violate nondisclosure agreements. This came to a head when Frank Snepp, a former CIA employee, wrote a book about the agency after neglecting, to provide the CIA with a prepublication review copy, as he had promised to do in an NDA. Courts found that Snepp had violated the law, even though none of the information he published was, in fact, classified.
From the opinion:
Whether Snepp violated his trust does not depend upon whether his book actually contained classified information. The Government does not deny—as a general principle—Snepp’s right to publish unclassified information. Nor does it contend—at this stage of the litigation—that Snepp’s book contains classified material. The Government simply claims that, in light of the special trust reposed in him and the agreement that he signed, Snepp should have given the CIA an opportunity to determine whether the material he proposed to publish would compromise classified information or sources.
Applying a similar nondisclosure agreement to the Trump administration as a whole would be problematic in the extreme. And this is in spite of the fact that Trump is widely known to favor the use of NDAs in business and even with his transition team. So far, he has made no attempt to legally muzzle high-ranking administration officials.