Classified reports on Russian hacking. The Comey memos. The “DO NOT CONGRATULATE” briefing. Is this the leakiest White House ever? The administration, the press, and the public are grappling with a deluge of leaks coming out of the White House. In today’s issue, we provide context on how to parse all these leaks: Abdallah Fayyad examines the laws that guide how journalists report on leaks; Caroline Kitchener draws up a flowchart that you can follow to help interpret leaked news items; and I dive into The Atlantic’s coverage of past administrations’ leaks.
The Laws Concerning Journalists and Leakers
Among Donald Trump’s many complaints about reporters is how they get behind the scenes in his own White House—citing sources close to the president to describe things like “chaos” and “fury” in the West Wing. But though the president has alarmed press-freedom advocates by vocally attacking the media, his calls for the Justice Department to crack down on leaky officials and the reporters who rely on them are not necessarily unprecedented. Thirteen years before Trump called former FBI director James Comey a “liar” and a “leaker,” Comey, who was then serving as deputy attorney general, appointed Patrick J. Fitzgerald as special counsel to investigate the leak that blew the undercover identity of CIA operative Valerie Plame.
During the Plame investigation in 2004, Fitzgerald subpoenaed several journalists to testify about their sources in front of a grand jury—a request that would force them to violate journalistic commitments not to reveal their sources. But in spite of industry-specific standards to uphold these commitments, there are no legally recognized privileges on the federal level that say you can’t punish reporters for failing to give up this information in a criminal investigation. For example, Judith Miller, a New York Times reporter at the time, went to jail for refusing to reveal the source who had told her Plame’s identity. The debate about the consequences for this kind of refusal on a journalist’s part—especially where there are national-security implications—has gone on ever since.
Though Fitzgerald’s investigation focused on potential violations of the Intelligence Identities Protection Act, there was worry among journalists that the special prosecutor was going to use the Espionage Act—a law passed during World War I that criminalized the disclosure of classified information. That law was rarely enforced in a journalistic context prior to the Obama administration, but that administration repeatedly used it to prosecute leakers. The problem for national-security journalists who sometimes deal with classified information was that, once sources fear prosecution, they give less information to reporters. And that law is precisely why reporters—especially those writing on national security—fear revealing their sources; if leakers are identified, they could potentially end up in jail.
In The Atlantic’s December 2004 issue, Benjamin Wittes, a senior fellow at the Brookings Institution who has been a critic of public disclosures of classified information, wrote about Fitzgerald’s investigation and argued that standard journalistic practices don’t always advance the public interest. In the Plame case, the journalists’ unwillingness to reveal their sources could have potentially derailed a federal criminal investigation, which the government argued implicated national security. “The oddity of the reporter's privilege is that reporters themselves are sometimes party to the improper—and occasionally illegal—disclosures that they then ask to be protected from testifying about,” Wittes wrote. But he concluded that journalists should be able to follow their codes of conduct without having to worry about jail, and that there should be some law protecting journalists who protect their sources. While there are such so-called shield laws on a state level, this is not true at the federal level.
“It is not, generally speaking, a reporter’s job to protect national security interests,” Wittes told me. “That is the government’s job. It’s the reporter’s job to inform the public.” But Wittes worries that too few journalists acknowledge that informing the public can sometimes conflict with other interests. “It’s a pretty common thing for members of the press to be kind of blind to the collateral negative consequences of some of their work, which is not to say that they shouldn’t do the work,” he said, “but they should be honest about the negative consequences of what they do.”
Even in the absence of federal shield laws, though, the leaks go on, especially from this White House. Fundamentally, this is because the leakers have an interest in leaking. “People leak information tactically, maybe strategically,” said Andrew Rudalevige, a professor of government at Bowdoin College. “They’re designed to engender public opinion in a way that helps to stop a decision from being made that [the leaker] thinks is a terrible decision. One reason you see an upsurge of leaking in the Trump administration is that you’ve got a decision making process that’s not really disciplined.”
According to the Department of Justice, there have been two investigations regarding leaks that have led to prosecutions since Trump took office. (The Obama administration prosecuted nine cases involving disclosures of classified information.) Historically, however, prosecutions of this kind tend to be rare, in part because “leaks are a useful currency of any presidential administration,” Rudalevige said. “You like leaks when they work for you. So it’s going to be very hard to have the moral authority to say ‘we’re only going to prosecute this leak.’”
While Attorney General Jeff Sessions has said his department will pursue leaks aggressively, there haven’t been any investigations with any serious consequence yet. “The Justice Department has barriers that it will not cross,” Wittes said. And as he wrote in his 2004 article, this might be a reflection of “the deference the Justice Department voluntarily shows to the role of the press in a democratic society.”
Ultimately, the journalist’s role of informing the public more often serves the national interest than endangers it, so these types of investigations are often built on a weak foundation. “In a lot of these cases,” Rudalevige said, “it’s not actually a national security case even though the government claims that it is.”
“Trump is Said to be Considering Free Donuts:” How to Read a Leak
One feature of “the leakiest White House ever” is that the public gets a lot of reports about what people say the president is considering. The president will be “said to be considering” some action or policy—which may mean that the policy will go into effect, that the president will decide against it after considering it, that the president actually wasn’t considering it at all and the source was wrong, or various options in between. As a reader, how can you parse the relationship between what the president is “said to be considering” and what will actually occur?
One thing to watch for is how the source of the information is identified. A “leak”—a piece of supposedly private information passed on to the media—can be credited to all kinds of people, including an “administration official,” “a senior administration official,” “a source close to the White House,” “a source in the White House,” or even “someone familiar with Trump’s thinking.” A typical attribution is a “person with direct knowledge,” which indicates the reporter spoke to someone whose job is unspecified but who knows the information first-hand; alternatively, a “person with knowledge” signals that the reporter’s source picked up the tip from someone else who heard it directly.
Despite what the administration might say, just because a story is based on a leak doesn’t make it unreliable. Consider the story from Jonathan Swan, a reporter for Axios, which cited “two sources with direct knowledge” as saying that Trump would announce plans to move the U.S. embassy in Israel to Jerusalem. Four days later, the report panned out: Trump announced the move at a White House press conference.
Sometimes, leaked plans do indeed get realized—just not right away. In November, three New York Times reporters wrote, citing “senior administration officials,” that Trump would fire Rex Tillerson—though it did not specify when. Trump, the reporters wrote, had “developed a plan” to force out his secretary of state. Tillerson held on another four months. And occasionally, leaked stories go nowhere. In May of 2017, Carlos Barria at The Daily Beast reported that, according to a “White House official,” Trump was considering rehiring former National Security Advisor Michael Flynn. If he considered it, he’s decided against it for the time being—it’s been almost a year and Flynn has not returned.
We’ve created a flowchart to guide you through a typical news story based on a leak. The chart hinges on an absurd hypothetical: “Trump is said to be considering free donuts for every American.” We’ve outlined the questions that you, the savvy reader, need to ask to determine how much stock to put in the report, and whether or not said donuts will arrive in mailboxes across America.
A Brief History of Leaks in The Atlantic
The big, old house on Pennsylvania Avenue is chronically leaky. From the Atlantic archives, here’s a historical perspective on some of its most consequential leaks, and how past administrations and journalists dealt with them.
In 1972, a year after the Pentagon Papers were splashed across the front page of the New York Times, Washington editor Sanford J. Ungar analyzed their ramifications in media. “The Pentagon Papers case is a decisive test of the federal government's capacity to control the disclosure of information stamped 'secret,'” he wrote, “[and] the press's ability to rely on 'leaks' in government circles.” The Supreme Court had decided to permit newspaper publication of the Papers. New questions had arisen about the freedom of the press and the government’s right to withhold, or even suppress, information. Many of those questions remain unresolved.
In 1982, the journalist Seymour Hersh was about to publish his award-winning book The Price of Promise, which detailed Henry Kissinger's service as national-security adviser to Richard Nixon. The Atlantic’s excerpt of it revealed Kissinger’s deep concern over leaks: He fretted not only about the Pentagon Papers, but also other documents Daniel Ellsberg—who leaked the Pentagon Papers—could make public. According to Hersh, Kissinger floated the idea of grabbing back classified documents stored outside the White House.
In 2004, special counsel Patrick Fitzgerald subpoenaed reporters to testify before a grand jury about the source who identified an undercover CIA operative. With the law and journalists at odds, the law journalist Benjamin Wittes defended the press’s privilege to keep mum about its sources. “[Journalists] shouldn't have to risk jail in order to do what everyone recognizes is their job,” he wrote.
In 2006, in the wake of Fitzgerald’s aggressive prosecution of members of the press, and the Bush administration’s increased hostility towards leaks, National Journal contributing editor Stuart Taylor worried about the future of journalists’ ability to report on leaks. Having heard about potential legislation that would make it easier to prosecute leakers, Taylor projected, “The executive branch will acquire more power than ever to hide its actions from public and congressional scrutiny.”
In 2013, contributing editor Garance Franke-Ruta laid out the differences between the environments of Daniel Ellsberg and Edward Snowden. Snowden made White House officials livid, Ruta explained, not only because they argued that the revelation of a secret wiretapping program would endanger the government’s ability to monitor terrorists. There were cultural factors at work, as well. Ruta pointed to a popular view of leakers as “snitches.” Snowden also lacked the political stature and wave of social movements that Ellsberg had ridden on, and fled the country for Russia (saying he wouldn’t receive a fair trial in the United States). Ellsberg surrendered to authorities and said he expected life imprisonment until his case ended in a mistrial.
Today’s Wrap Up
Question of the day: Is this the leakiest administration, from your perspective? Why or why not?
What’s coming: The Atlantic hosted its annual health care summit today. We’ll share a dispatch from the event on Wednesday.
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