In Praise of Leaks
By Norman Pearlstine
Douliery Olivier—Abaca/Sipa USAThe Trump Adminstration represents the most
serious threat to a free press since ... the Obama adminstration.”- Bruce
Brown, executive director of the Reporters Committee for Freedom of the Press
Pearlstine is
a former Time Inc. editor-in-chief and the author of Off the Record: The Press,
the Government, and the War Over Anonymous Sources
To watch
Steven Spielberg’s The Post” is to see how much has changed
since the Supreme Court allowed publication of the Pentagon Papers in
1971. Back then the Court’s liberal majority espoused the right to publish
leaks, especially those in the public interest. Justice Hugo L. Black’sopinion insisted that “the press must be
left free to publish news, whatever the source, without censorship,
injunctions, or prior restraints” while Justice William O. Douglas said,
“Secrecy in government is fundamentally anti-democratic.”
A lot has
changed since the Nixon Administration. Journalism is no longer ascendant. A
series of court cases has affirmed the government’s right to keep secrets while
limiting when reporters can legally keep sources confidential. The public’s
distrust of media has never been greater. And many news-media companies
continue to struggle financially.
A Gallup poll taken
shortly before Donald Trump was elected President showed that only 32% of
Americans — the lowest level in Gallup polling history — say they have a great
deal or a fair amount of trust in the media “to report the news fully,
accurately and fairly.” Other polls point to public distrust of the media’s use
of anonymous sources.
At the same
time, leaks have become bigger and more serious. Massive hacks including those
perpetrated by WikiLeaks, Edward Snowden and U.S. Army Private Chelsea Manning
have succeeded in penetrating the National Security Agency, the State
Department and other government entities. Leaks from within the Trump White
House and the agencies reporting to it are ubiquitous.
All of which
leaves the free press in America at an increasingly precarious moment. Sensing
journalists’ reputational and economic vulnerability, President Donald Trump
has fought back by branding the news media“the enemy of the American people.” He
dismisses any story he doesn’t like as “fake news,” even as he and others on
his team have leaked sensitive material with impunity. Most ominously, he has
ordered the Justice Department to review its self-imposed limits on investigating
and prosecuting the media. The risk is that in fueling popular resentment and
issuing demands for crackdowns, the President will succeed in undermining its
ability — notwithstanding the protections enshrined in the First Amendment — to
expose government mistakes, lies and deceptions.
This moment
didn’t arise out of the blue. “The Trump Administration represents the most
serious threat to a free press since … the Obama administration,” says Bruce
Brown, executive director of the Reporters Committee for Freedom of the Press.
Trump and Obama may hate each other and they have little in common. But when it
comes to leaks — at least the ones they don’t control — each has aggressively
sought to punish the leakers and the media that published the classified
disclosures and other embarrassing material.
The fact that
two such different Presidents could be embracing the same draconian approach on
such a high-stakes, high-profile issue is chilling.
The numbers
are stark. President Obama’s Justice Department prosecuted nine government
employees or contractors under the Espionage Act for leaking information to the
media and policy groups, double the number of prosecutions brought by all of
its predecessors. It secretly seized Associated Press phone records in a leaks
investigation, in what AP President Gary Pruitt called a massive and unprecedented
intrusion” that might be unconstitutional. The DOJ also opposed
passage of a federal shield law that would have helped journalists protect
their sources.
“If Donald J.
Trump decides as president to throw a whistle-blower in jail for trying to talk
to a reporter, or gets the F.B.I. to spy on a journalist, he will have one man
to thank for bequeathing him such expansive power: Barack Obama,” wrote investigative reporter James
Risen shortly before Trump took office.
During his
2016 Presidential campaign, Trump said he loved leaks of information from the
Democratic National Committee that hurt Hillary Clinton. Since becoming
President, however, he has complained incessantly about unauthorized leaks and
he has ordered Attorney General Jeff Sessions to do something to stop them.
Sessions
subsequently said the Trump Administration was pursuing 27 leak investigations,
three times the number of investigations undertaken in the Obama years. His
comments followed the release of a Senate Homeland Security committee report
that listed an “avalanche” of harmful leaks that appeared in 125 bylined news
articles.
While the
Justice Department, working with Bill Evanina, the head of U.S.
counterintelligence, goes after leakers, Sessions has ordered a review of
department guidelines that have served to limit prosecutors’ use of subpoenas
in leak investigations. Deputy Attorney General Rod Rosenstein gave Brown and a
group of journalists a high-level briefing that lacked specifics, and there
have been no announcements of consequence from the Justice department since
then.
The DOJ
guidelines aren’t a product of legislation, and on the surface, they seem
arcane, telling prosecutors when they can use subpoenas and other tools to get
information about news media sources, including the names of leakers. In reality, the
guidelines have created a quasi-shield law that governs the news media’s relations
with the courts and with their sources. In the 33 years since the first
guidelines were promulgated, they have often been as effective in protecting
journalists from overzealous prosecutors as they have been coercive in cases
where reporters face fines and imprisonment for refusing to comply.
The review of
DOJ guidelines comes at a time when President Trump is engaged in a much
broader effort to debase the news media. Before and after he took office,
Trump’s rallies almost always included a withering diatribe against CNN, the
New York Times and other big news organizations that have been
most aggressive in covering him. His followers have responded with chants of
“Lock ’em up! Lock ’em up!”
Existing
protections could be swept away should the Justice Department impose new
guidelines that reflect President Trump’s thinking.
When
reporters testify
I have been
witnessing the escalating battles over leaks with more than casual interest.
More than a
dozen years ago, while working as Time Inc.’s Editor in Chief, I concluded that
a TIME reporter should comply with a request from George W. Bush’s Justice
Department that he testify before a grand jury about a leak we received from an
Administration official about a covert CIA officer,Valerie Plame. I made that controversial
decision after the courts ruled we couldn’t keep secret a key source’s identity
or what that source — White House deputy chief of staff Karl Rove — had told
us.
Plame was a CIA
operative working on weapons of mass destruction. After her husband, Joseph
Wilson, wrote a column in the New York Times in July 2003
attacking President George W. Bush for misleading the public while seeking to
justify his war with Iraq, Plame’s identity was leaked to several journalists
in an effort to embarrass her and undermine his credibility. Deputy Attorney
General James Comey subsequently appointed Patrick J. Fitzgerald, the U.S.
attorney for the Northern District of Illinois, as special counsel to
investigate the leaks. Fitzgerald convened a grand jury in January 2004 and
soon after, he issued subpoenas seeking TIME reporter Matthew Cooper’s
testimony and Time Inc.’s notes.
A federal
district judge and an appellate court rejected our efforts to quash the
subpoenas and the Supreme Court refused to review those decisions.
By refusing to
hear our case, the top court left intact its 1972 ruling inBranzburg v.
Hayes that reporters, like other citizens, could be compelled to
testify before grand juries. The court’s 5-4 decision in Branzburgeffectively
limited the importance of its year-earlier Pentagon Papers ruling in New York Times Co. v. United States.
Judge Byron
White’s majority opinion in Branzburg was clear and unambiguous:
society’s interest in law enforcement outweighed the need of journalists to
protect their sources. Among those judges who dissented, Potter Stewart argued
for a case-by-case test that balanced the needs of the grand jury and the
interests of journalists.
Despite the
closeness of the vote, the Branzburg decision would have been
less controversial had Justice Lewis F. Powell, who voted with the majority,
not written a concurring opinion that, nonetheless, embraced Stewart’s
balancing test. Over the next three decades lawyers argued Powell’s ambiguity
created a so-called reporter’s privilege — an exception toBranzburg —
enabling them to protect journalists and their sources in several lower court
cases.
That window
was slammed shut when the Supreme Court refused to hear our appeal in the Plame
case. Fitzgerald and the judges who ruled against us had relied on a 2003
case, McKevitt v. Pallasch, in
which an influential, conservative appellate judge, Richard Posner, had
concluded Branzburg’smajority opinion should be strictly enforced
without exceptions.
Department
of Justice guidelines
The Supreme
Court’s unwillingness to review Branzburg makes any changes in
the Justice Department guidelines especially important at a time when leaks are
growing in significance and frequency, as is the government’s determination to
stop them.
The first DOJ
guidelines laying out whether and when federal prosecutors might seek testimony
from journalists about their sources were published in 1974, when Richard Nixon
was President and John Mitchell was his Attorney General. Although both men
disliked the journalists covering them, they were contending with strong public
support for the press.
New
technologies have since changed the nature of leaks and leaking. In 1971, Max
Frankel, then the New York Times Washington bureau chief filed
an affidavit in defense of the Times’s stories about the Pentagon
Papers, the lengthy, classified report that traced U.S. involvement in Vietnam
between 1945 and 1967. Frankel’s 18-page affidavit in praise of leaks described
a cozy relationship between top government officials and an elite group of
Washington reporters in which the officials often used the press to float trial
balloons to test public opinion or new projects or policies. At other times the
reporters used their relationships to pursue unauthorized disclosures,
confirming on background rumors and information obtained elsewhere. A
relatively small amount of information was classified and reporters were
careful not to publish information that might jeopardize the lives of the people
they were writing about.
While those
trial balloons — more accurately called “plants” — and the unauthorized
disclosures, or leaks, to individual journalists remain important, they have
been augmented by “hacks,” resulting in the broad release of millions of
classified and confidential files from government computers.
President
Trump blames the increase in leaks on entrenched, disgruntled bureaucrats from
a dark administrative state determined to undermine the President’s efforts to
“drain the swamp.” Their detractors view leakers as heroes who are saving
America from disaster by exposing dangerous behavior that would otherwise
remain secret.
Although many
journalists might personally disapprove of hackers, most of us would take
information from them if offered and authenticated, since motive is always at
work when information is leaked and, in theory, the hacker and the leaker are
both providing similar content, albeit in different amounts. Despite being
classified, disclosure of leaked information is often in the public interest
and, in any case, if one publication refuses the leak, another will accept it.
The information will surface.
The Espionage
Act has been on the books for 100 years. It has been amended many times since
1917. Leaks of classified information are covered by the law, but it only
applies if the information is leaked to injure the U.S. or “to the of advantage
of any foreign nation.” The law’s focus is more on gathering and copying
information than on publishing and very few people have been charged under it,
leading Columbia law professor David Pozen and others to conclude that despite
the complaints of Presidents, leaking is too much a part of Washington’s
culture to be stopped.
Pozen is
right. A large percentage of the leaks that have bedeviled our Presidents come
from otherwise valued sources that might work in the West Wing, from Cabinet
members and their staffs, from Republicans and Democrats in Congress, or from the
committee staffers who work for them.
The huge
number of people who have access to classified information is only exceeded by
the massive over-classification of millions of documents every year. Too many
classified documents have little or nothing to do with national security. As
Supreme Court Judge Potter Stewart wrote in the Pentagon Papers case, “when
everything is classified, then nothing is classified.”
It was only in
2015, halfway through Obama’s second term, that the Justice Department
published a new set of guidelines governing prosecutors’ use of subpoenas in
leak investigations. The new guidelines resulted from lengthy discussions with
Brown and groups of editors and media executives. They reflected a truce of
sorts, a case by case balancing act limiting areas where federal prosecutors
might seek information from journalists. The guidelines also
increase areas where they would need to provide prior notice before seeking
records that might identify journalists’ sources from phone companies and other
third parties.
Should the DOJ get serious
about cracking down on leaks, it will most likely promulgate new rules that
encourage prosecutors to increase demands for journalists to testify about
their sources before grand juries. A client memo from the Latham & Watkins
law firm also speculates that the DOJ might also narrow the definition of
“Newsgathering,” while also expanding the definition of “National Security.”
The DOJ might also define more
narrowly who is a journalist. You don’t need a license to practice journalism
and while colleges and universities offer journalism degrees, many of our most
successful journalists have never taken a course in the subject. Moreover, the
First Amendment wasn’t written to protect big media companies. There were none
at the time. Congress wanted to protect the penny press and pamphleteers. Any new
guidelines might focus on the content produced rather than the pedigree of the
writer or producer.
Leaks
do more good than harm
Leaks can
certainly cause embarrassment and there have been examples where they also
caused real damage. But to a surprising degree, leaks usually do more good than
harm.
Along with
most Americans, I believe our government has the right to keep secrets,
especially when national security is at stake. I only wish it did a better job
of protecting its secrets. I also join many Americans in thinking transparency
is an essential antidote against leaders who rely on secrecy to hide their
mistakes, corruption and dishonesty.
If nations can
have secrets, it follows that there should be laws that punish leakers who
obtain or disseminate classified information illegally. I don’t think
journalists are above the law. Much as I wish the Supreme Court had ruled
otherwise, it shows no interest in reversing Branzburg. Since,
as a result, we can be compelled to testify before a grand jury, our sources
and the public should understand we shall usually do so. That said, I believe
there are rare occasions when journalists and the corporations they work for
may decide to engage in civil disobedience if that is the only way to protect
confidential sources. We should be prepared to pay fines and be jailed for
criminal contempt should we refuse to testify.
My own rule is
that a journalist should not defy the courts without having good reason to
believe that publication of leaked and classified information is in the
national interest, and that the source’s life or livelihood would be
jeopardized by revealing his or her identity. Although grand juries are
supposed to work in secrecy, leaks from them are all too common.
When it comes
to leaks and the press, we have always wanted it both ways. In 1734, decades
before the Revolutionary War, John Peter Zenger, a New York publisher, defied
government efforts to learn the names of sources who had criticized the
colonial governor. He was charged with seditious libel but was acquitted at
trial after his lawyer, Andrew Hamilton, convinced the jury that keeping his
sources confidential was “in the cause of liberty.”
The Federalist papers,
written to support ratification of the Constitution, established the principle
that anonymity was an important component of free speech, when their authors,
Alexander Hamilton, John Jay and James Madison, published the papers under the
pseudonym Publius. In 1789, Congress passed the First Amendment, prohibiting it
from “abridging the freedom of speech, or of the press.” Less than a decade
later, Congress passed a Sedition Act that first placed limitations on speech.
Abraham Lincoln ordered the arrest of critics who opposed the Civil War. And
throughout the 19th century, many state courts were jailing reporters who
wouldn’t identify their sources for stories.
In the Plame
case we gave a grand jury notes belonging to Time Inc. because I didn’t think
the circumstances justified our civil disobedience. Rove said he hadn’t asked
for confidentiality and neither his life nor his livelihood were at risk.
Although I would have done the same thing under similar circumstances today, I
believe that many of the leaks and leakers telling us what is going on in the
Trump White House deserve protection. If reporters and editors writing stories
based on leaked information from those sources agree, Donald Trump’s “Lock them
up!, Lock them up!” now a wish, may soon be
reality. It’s a long way
from the heady days of victory depicted in The Post.
Pearlstine is
a former Time Inc. editor-in-chief and the author of Off the
Record: The Press, the Government, and the War Over Anonymous Sources
This appears in the January 22, 2018 issue of TIME.