An administration in turmoil. A president sometimes “absolutely out of his senses.” Panic over foreign terror; a lurch toward war; rumors of immigrant roundups; foreign meddling in American politics. Fear and despair over the American Republic, once seemingly favored of Heaven, now teetering on the verge of dictatorship or chaos.
The year: 1800.
The case: America’s first great leak investigation.
President Donald Trump claims public concern about possible Russian intervention in the U.S. presidential election is a “ruse” concocted by Democrats smarting over their defeat in the election last year. “The real scandal here is that classified information is illegally given out by ‘intelligence’ like candy,” he tweeted February 15. “Very un-American!”
But is it? Consider the case of William Duane, editor of the Philadelphia Aurora. Even by the rough-and-tumble standards of 18th-century American journalism, both the editor and the paper were stunningly partisan. They vociferously supported Vice President Thomas Jefferson and his nascent Democratic Republican Party, and conducted an all-out verbal onslaught on Jefferson’s foe, “His Rotundity” President John Adams. The Jeffersonians had been the subject of a two-year campaign of legal intimidation by the administration of John Adams and the Federalist Party. In 1798, the Federalists had rammed through Congress the Sedition Act. Under its terms, pro-Jefferson editors could be—and had been—jailed for printing any matter critical of the president or the Congress, “to excite against them, or either or any of them, the hatred of the good people of the United States, or to stir up sedition within the United States.” (The law pointedly excluded the vice president from its coverage; Jefferson could be, and was, attacked freely by the Federalist press.)
Meanwhile, the U.S. and France had drifted into an armed conflict later known as the “Quasi-War.” Federalist fears of pro-French radicalism led to the Alien Act and the Alien Enemies Act, the first anti-immigrant statutes in American history. These laws gave the president sweeping power to arrest and deport any alien who was from an “unfriendly” country, who was “dangerous to the peace and safety of the United States,” or who was “concerned in any treasonable or secret machinations against the government.”
The Alien and Sedition Acts provoked the nation’s first civil liberties crisis. They spurred fierce resistance from ordinary Americans, who rejected xenophobia and treasured the right to criticize their leaders. By early 1800, a major popular backlash had set in. Sober Federalists realized that Adams faced long odds against his re-election that fall.
So they did what many politicians today would: they decided to fix the election. Senator James Ross of Pennsylvania introduced in the Senate an “electoral count act.” In Freedom’s Fetters: The Alien and Sedition Laws and American Civil Liberties, the historian James Morton Smith called this proposed act “a thoroughly vicious measure.” It would have ended the public counting of electoral votes by Congress, instead giving the task to a secret “grand committee” made up entirely of Federalist legislators and judges, empowered to reject behind closed doors any electoral votes it decided were obtained by fraud or illegality—and thus tip an election from Jefferson to Adams regardless of the popular will.
Proceedings, and proposed laws, in the Senate at that time were not public. However, three Jeffersonian senators, alarmed at the attempted coup, leaked the text of the proposed bill to Duane, who published a report in the Aurora on February 19, 1800.
Popular revulsion at this power grab doomed the “electoral count” measure, but (surprise!) what truly outraged Senate Federalists was the leak. Federalists in the Senate voted to summon Duane to face “trial” in front of them for “contempt”—the “crime” of breaching the unwritten “privilege” of the Senate. In that proceeding, he would be required to reveal who had given him the proposed bill. Senator Uriah Tracy, a Federalist from Connecticut, told his colleagues that the proceedings might “lead us to discover some person whom we can punish,” and perhaps allow the body to expel the senators who had dared leak the draft bill to the Aurora.
Duane requested the assistance of counsel and the right to present evidence. The Federalist majority replied that lawyers could appear but could make no challenge to the Senate’s power to conduct the trial, and that Duane could not introduce evidence in his defense, only ask for leniency. Rather than face prison, the editor went into hiding, but continued taunting his would-be persecutors in the pages of the Aurora. Frustrated in their plans for a star-chamber trial, the Federalist senators finally requested the administration to prosecute the cheeky editor in federal court under the Sedition Act. This Adams dutifully did—but by the time the case came to trial, he had been turned out of office. Jefferson, his successor, instructed federal officials to treat the Act as a legal nullity; Duane’s case was dropped.
Think about the Duane case when you assess the cries of “Shocked! Shocked!” from Trump and his allies about the terrible, horrible, no good, very bad leaks that forced the resignation of Mike Flynn as National Security Adviser. Someone inside the government must have grown concerned by the following facts: First, a high level Trump adviser reportedly called a Russian official during the transition and discussed the sanctions being put in place against Russia to punish it for its apparent intervention in the American election, a grave breach of protocol and possibly of federal law; second, the same adviser reportedly misled investigators and others in the new administration—inconsistencies easily revealed by the transcript routinely made by American intelligence officials; and, third, the president himself had been told by the proper officials about the call and the statements, and about the possibility that Flynn, by violating federal law against lying to federal investigators, had rendered himself susceptible to Russian blackmail—and yet had chosen to do nothing about this possible grave security breach by his adviser.
Imagine you were the one to whom this information came. You, as much as Flynn or the president, have sworn an oath of allegiance to the U.S. and its Constitution, and you are entrusted by the law with responsibility for protecting them, by monitoring espionage and meddling by foreign intelligence agencies. You see facts that raise the specter at best of a serious potential intelligence breach—and at worst of active collusion between high U.S. officials and agents of Russian intelligence. You have seen the a new president not only deny these facts but attack and ridicule those who gathered them, and even compare these American public servants to Nazi and Soviet thugs.
Quite clearly, as it stands, nothing will be done to investigate what the surveillance has revealed. The potential risk to the nation is grave.
What would you do?
I have never been in that position. I hope—oh, how I hope!—that if I were, and I faced a choice between remaining silent about possible disloyalty at the highest levels on the one hand and revealing classified information on the other, then I would choose, at my own risk, to let the world know of the danger and the cover-up.
And if I did that, it might comfort me to know that what I had done might be a mistake, and certainly would be dangerous, but was not, whatever Trump may tweet, “un-American.”
William Duane’s story shows us that leaking, and publishing leaked information, is as American as hard cider, and has, at some points in our history, qualified as an act of high patriotism.
In 1800, the leak of the “electoral count” proposal may have preserved American democracy against a plot to hijack it for partisan advantage. It will be a long time before history can render a verdict on the leaks of 2017. But the story of Duane does suggest that Americans should turn a skeptical eye at the pieties of any official who professes to be more upset at the leak itself than at the prospect of foreign meddling in our government.