Journalists often publish information taken from leaked classified documents. Does the First Amendment protect them from prosecution for doing so? The Supreme Court has not considered that exact question, but Bartnicki v. Vopper  suggests that journalists would indeed be protected as long as they were innocent recipients of the information—that is, they did not participate in or encourage the illegal activity of leaking classified information. Under the Espionage Act of 1917, the government would have to prove that the journalists published with the intent to hurt the United States, a requirement that would likely be difficult to satisfy. The leakers, of course, do risk prosecution, and journalists can be ensnared in an investigation to discover the names of the confidential sources who provided the information to them. Aggressive prosecution of leakers began under President Obama – with the most famous case, Edward Snowden, still in hiding in Russia – and continues under President Trump. Attorney General Jeff Sessions is rumored to even be considering a lie detector test to ferret out leakers. For news, analysis, history & legal background read on.

 

 


News & Updates

November 14, 2017: Attorney General Sessions Reports 800% Increase in Leak Probes

In House Judiciary Committee testimony, Attorney General Jeff Sessions reported that there are currently 27 ongoing leak investigations, including building the case against NSA contractor Reality Winner. That’s a steep jump over previous years reflecting the Administration’s focus on stemming the tide of confidential data coming to the public.

The Daily Beast>
September 10, 2017: Will Sessions Use a Lie Detector Test To Ferret Out Leakers?

Axios reports that Attorney General Jeff Sessions is considering using a lie detector test to find out who leaked classified information at the National Security Council.

Axios>
August 4, 2017: Trump Administration Doubles Down on Leakers

Attorney General Jeff Sessions, under pressure from President Donald Trump, announced that the Department of Justice has tripled leak investigations and established a new unit within the F.B.I. to oversee them. Sessions, who said “the staggering number of leaks” was “undermining the ability of our government to protect this country,” also promised to swiftly prosecute any leakers uncovered by investigators. First Amendment advocates sharply criticized the Administration’s crackdown, The New York Times reports.

New York Times>
August 4, 2017: List of Leaks To Date Under Trump Administration

USA Today outlines twelve major leaks since President Trump took office on January 20, 2017.

USA Today>
June 5, 2017: Charges Brought Against Reality Winner, First Trump Administration Leaker

On June 5th, 2017, the U.S. Department of Justice announced the arrest of Reality Leigh Winner, a 25 year old intelligence contractor charged under the Espionage Act with leaking a classified N.S.A. document to The Intercept, an online news magazine. Winner was one of only six individuals who printed out the leaked report, which detailed cyberattacks undertaken by the Russians as part of their interference in the 2016 U.S. presidential election, leading investigators to search her computer. They discovered Winner had emailed the top secret intelligence to The Intercept, causing them to bring charges against her. Winner is the first leaker to be charged during the Trump administration.

New York Times>
June 13, 2017: Sessions Reviews Active Leak Investigations with  Senate Intelligence Committee

In testimony before the Senate Intelligence Committee, Attorney General Jeff Sessions assured Senator Tom Cotton (R-Ark.) that numerous leak investigations were being carried out by the Department of Justice. Noting Winner’s arrest days earlier, Attorney General Sessions said “some people may… wish they hadn’t leaked.”

Politico>
June 13, 2017: Trump Goes After Manchester Bombing Leakers As Part of His Quest to Shut Down Leaks

After complaints from British law enforcement officials, President Trump ordered the Department of Justice to investigate “deeply troubling” leaks of information regarding the investigation into the terrorist attack outside an Ariana Grande concert in Manchester. British authorities blamed their U.S. counterparts for leaks to The New York Times and other news organizations.

Washington Post>

March 20, 2017: House Redirects Discussion to Focus on News Leaks

Echoing President Trump’s tweets, Congressmen Trey Gowdy (R-S.C.) and Tom Rooney (R-Fla.) demanded that FBI Director James Comey focus on investigating “the felonious dissemination of classified material” at a hearing of the House Intelligence Committee. At one point, Congressman Gowdy asked Director Comey if he would prosecute the reporters who published the leaks; while Comey pointed out no reporter has ever been prosecuted for leaks in history, he said it would be up to the Justice Department. Some Democrats seemed to agree. Congressman Jim Himes (D-Conn.) said that there would be “no argument from this side of the aisle on the importance of investigating, prosecuting leaks.” In a March 1st press release, Congressmen Devin Nunes (R-Ca.) and Adam Schiff (D-Ca.), Chairman and Ranking Member of the House Intelligence Committee, announced that their investigation into Russian interference in the presidential election would include an examination of “what possible leaks of classified information took place related to the Intelligence Community Assessment of these matters?”

New York Times> Intelligence Documents>
February 16, 2017: Trump Denounces Leakers at Press Conference and Tweets His Displeasure


In a series of tweets following the resignation of National Security Advisor Michael Flynn, President Trump demanded an apology from the “failing” New York Times for publishing “illegal classified” information and promised to catch “the low-life leakers!” Two days earlier, the President tweeted that “the real scandal” was not about Michael Flynn, but instead about “un-American” leaks from the intelligence community that revealed Flynn had lied regarding his communications with Russian officials.

History & Legal Cases

Donald Trump is certainly not the first President to find his administration undermined by information leaked to the press, nor is he the first to order investigations into those leaks. The Obama administration prosecuted more leakers than any other administration combined (those cases are detailed below). The Espionage Act of 1917 prohibits the unauthorized disclosure of classified information “prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States.” Daniel Ellsberg, who leaked over 7,000 pages of a classified Defense Department report on the Vietnam War in 1971 to The New York Times and The Washington Post, was charged under the 1917 Espionage Act but the judge dismissed the charges because of government misconduct. The Nixon Administration sought to stop the two newspapers from printing their stories on the Pentagon Papers. While Ellsberg’s leaking of the Pentagon Papers proved embarrassing to the United States, the Supreme Court ruled in a 6-3 decision that the newspapers could publish the leaked information because the government failed to prove the serious harm required for securing a prior restraint on publication. Other prominent examples of the prosecution of government leakers include Mark Felt, the FBI official known as “Deepthroat” who shared Watergate-related information that resulted in the resignation of President Nixon; Chelsea Manning, an Army intelligence officer who leaked military and diplomatic secrets to WikiLeaks in 2010; and Edward Snowden, the intelligence contractor who exposed top-secret NSA surveillance and data collection programs. While many leakers, like Manning, have been jailed for disclosing sensitive information, no journalist has yet been prosecuted for publishing information obtained through leaks.

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Bartnicki v. Vopper, 200 F.3d 109, Supreme Court of the United States, 2001

Journalists often publish information taken from leaked classified documents. Does the First Amendment protect them from prosecution for doing so? The Supreme Court has not considered that exact question, but Bartnicki v. Vopper suggests that journalists would indeed be protected as long as they did not participate in or encourage the illegal activity of leaking classified information.  In Bartnicki, a local school board and the teachers’ union were involved in collective-bargaining negotiations. During the negotiations, an unidentified person intercepted a cellular conversation between two union negotiators and turned it over to journalists. Vopper, a radio station commentator, played a recording of the intercepted recording. A newspaper also published the conversation. Federal and state law prohibited the disclosure of the contents of wire communications. Could the journalists be prosecuted under those statutes?

The Court noted that those “who made the disclosures did not participate in the interception, but they did know—or at least had reason to know—that the interception was unlawful.” However, privacy interests were not strong enough to overcome the protection of the First Amendment. “In this case, privacy concerns give way when balanced against the interest in publishing matters of public concern. [A] stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.” Bartnicki involved information from an intercepted cellular call,  and so the central question is whether its reasoning would extend to journalists who publish leaked classified government information.

Case Link BARTNICKI et al. v. VOPPER>

18 U.S. Code § 793 prohibits the “gathering, transmitting or losing” of “information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States.

18 U.S. Code § 793

18 U.S. Code § 798 criminalizes the disclosure of classified information to an “unauthorized person” that is used “in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States.

18 U.S. Code § 798

18 U.S. Code § 641, which prohibits the general theft of “public money, property or records,” has occasionally been used during leak prosecutions.

18 U.S. Code § 641

18 U.S. Code § 1001 makes it a cover up a crime or make false statements to investigators. Often in the course of leak investigations, the individual suspected of leaking information ends up lying about their actions. Instead of being charged for the act of leaking, they are charged for under this statue.

18 U.S. Code § 1001

Leaks and the Media – a Newseum Primer

Newseum Institute
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Leak Prosecutions Under Obama

Shamai Leibowitz (2010)

In 2010, Shamai Liebowitz, an FBI contractor, received a 20 month federal prison sentence for providing classified government documents to a blogger. Leibowitz leaked “transcripts of conversations caught on FBI wiretaps of the Israeli Embassy in Washington” because he had “concerns about Israel’s aggressive efforts to influence Congress and public opinion” in the United States. Liebowitz was the first leaker prosecuted by the Obama administration.

Washington Post>

Thomas Drake (2010)

In 2010, Thomas Drake, a former National Security Agency official, was indicted under the Espionage Act of 1917 for leaking secret NSA documents to a reporter with the Baltimore Sun. Using information obtained from those leaks, the Sun published “a series of articles” chronicling “financial waste, bureaucratic dysfunction, and dubious legal practices in NSA counterterrorism programs.” In 2011, Drake accepted a plea deal from the Justice Department, plead guilty to a single misdemeanor and was sentenced to probation. The Obama administration inherited the Drake case from the Bush administration.

New Yorker>

John Kiriakou (2012)

In 2012, John Kiriakou accepted a plea deal from the Justice Department to serve two years in federal prison for leaking the identity of an undercover CIA operative to two journalists. Kiriakou was the first CIA officer “ever to be convicted of disclosing classified information to the press.”

New Yorker>

Chelsea Manning (2013)

In 2013, Chelsea Manning, a former non-commissioned Army intelligence officer, was sentenced to 35 years in prison for leaking over 700,000 classified documents “that lifted the veil on American military and diplomatic activities.” The information Manning disclosed to WikiLeaks included 250,000 State Department cables and military files that “exposed the abuse of detainees by Iraqi officers” and showed that “civilian deaths during the Iraq war were most likely significantly higher than official estimates.” In 2017, President Obama commuted her sentence, which was “the longest ever imposed in the United States for a leak conviction.”

New York Times>

Donald Sachtleben (2013)

In 2013, Donald Sachtleben, a former FBI bomb technician, plead guilty to “leaking classified information to the Associated Press about a foiled bomb plot in Yemen” and was sentenced to 43 months in prison. Federal investigators determined Sachtleben had been responsible for the leaks “after secretly obtaining A.P. reporters’ phone logs.”

New York Times>

Edward Snowden (2013)

In 2013, Edward Snowden, a former intelligence contractor, was charged under the Espionage Act of 1917 for leaking “a trove of documents about top-secret surveillance programs” conducted by the NSA. In 2017, the Russian government extended Snowden’s asylum, which it originally granted in 2013.

Washington Post>

Stephen Kim (2014)

In 2014, former State Department official Stephen Kim plead guilty to disclosing classified North Korea-related intelligence to a Fox News correspondent. Kim was sentenced to 13 months in federal prison.

USA Today>

Jeffrey Sterling (2015)

Former CIA officer Jeffrey Sterling received a three and a half years federal prison sentence for leaking information regarding a covert effort to sabotage the Iranian nuclear program to The New York Times.

New York Times>

James Cartwright (2016)

James Cartwright, a retired four-star Marine Corps general, plead guilty to “lying to the FBI about his discussions with reporters about Iran’s nuclear program” in 2016. In 2017, President Obama pardoned Cartwright, the former Vice Chairman of the Joint Chiefs of Staff.

New York Times>

Analysis & Opinion

September 4, 2017: Confidential Sources May Suffer As A Result of Administration’s Leak Focus

David McCraw writers in the New York Times that the public should be paying attention to the aggressive focus on leakers as the right of reporters to protect their sources is being challenged like never before.

New York Times >
August 10, 2017: A Uphill Leak Fight for Trump?

Nixon lawyer John Dean discusses the similarities and differences in the leaks cases of Nixon and Trump with NPR’s David Greene.

August 2, 2017: Leaks Are In the Public’s Interest Says CNN’s Brian Shelter

CNN’s Senior Media Correspondent Brian Stelter points out that “journalists — the recipients of” leaked information “typically argue that” the stories resulting from leaks “are in the public interest.” While “not all leakers are heroic,” often times the information gleaned from leaks expose malfeasance, corruption and lies within government.

New York Times >
June 8, 2017: Trump Versus Obama on Leakers

Cleve R. Woorson Jr. writes in the Washington Post that while President Trump may publicly and vociferously shame leakers, the Obama administration was quietly more aggressive in clamping down on leaks.

Washington Post>
February 20, 2017: Do Leaks Violate the Espionage Act?

While the Espionage Act prohibits the disclosure of information harmful to U.S. national security interests, it does not “explicitly criminalize giving classified information to the media.” According to legal experts interviewed by Politifact, no Russia-related Trump leaks seem to violate section 798 of the Espionage Act.

Politifact>
December 30, 2016: Obama – The Zealous Leak Prosecutor

James Risen, a Pulitzer Prize-winning investigative journalist who was subpoenaed by the Obama administration for publishing leaked-information about a CIA effort to sabotage the Iranian nuclear program, harshly criticizes President Obama for adopting “a zealous, prosecutorial approach toward all leaking.” If Trump goes after journalists and leakers, Risen quotes Lucy Dalglish as saying, its because “Obama handed him a roadmap.”

New York Times>