Why is all this important? Because if you start down this path, it is important to win. There are no moral victories. There is no comforting pat on the back for being right or defending principle. In this matter, there is a winner and a loser.
Imagine the media as the winner of a long, bitterly contentious struggle that ends in the Supreme Court. They will have succeeded in turning themselves into martyred heroes. We may, quite justifiably, view the Times and its allies in this cause as aiders and abettors of our wartime enemy. But the history — which they, primarily, will write — will portray them as Defenders of the Constitution.
More consequentially, were the press to win such a battle, it would only encourage more leaking. Now their recklessness (or worse) would bear a judicial imprimatur. Think of it as a Pulitzer Prize … but one backed by the prestige of the Supreme Court rather than the dwindling influence of journalism’s majordomos.
Let’s remember: The goal here is to stop the leaking. It is not to mount a trophy journalist on a prosecutor’s me-wall. From that practical perspective, making the reporters and their newspaper the targets of prosecution is a double failure. Not only do you probably lose the case in the long run; you also fail to get to the root of the scandal.
Face it: Internal government investigations into leaks go nowhere. The government is too big. Many people are in the loop even on sensitive information, so it is often impossible to pinpoint who the leaker is. When investigators occasionally manage to narrow the suspects down, the leaker typically lies about what he has done (as one would expect in the first place from someone who has betrayed his oath by leaking).
There is only one real way to identify government officials who disclose classified information. You have to get it directly from the journalist who spoke to them.
But if, as the King approach posits, the journalist were made the target of a criminal investigation, he would have a Fifth Amendment privilege to remain silent. That is, by clinging to the slim possibility of successfully prosecuting the journalist, investigators would render legally unavailable the only realistic witness to the public official’s illegal leaking. So in the end, no one would get prosecuted. And the leaks would go merrily on — undeterred, if not emboldened.
There is but a single viable strategy here. The focus of the prosecution must be the public officials who leaked, not the journalists who published. The journalists must be given immunity from prosecution. That would extinguish their privilege against self-incrimination, meaning they could be ordered to reveal their sources to a federal grand jury. There is no legal privilege to refuse. We saw that in the Valerie Plame investigation, in which a prosecutor moved aggressively against a leak that pales beside the gravity of what we are discussing.
If the immunized reporters declined an order to testify, they could be jailed for up to 18 months for contempt-of-court. Jail is an unpleasant place. Recall that it took Judith Miller only a few months there to rethink her obstructionist stance in the Plame case. And the mere specter of imprisonment inspired Matthew Cooper to surrender his source on the verge of a contempt citation.
Chances are that the journalists who have exposed leaked national-security information over the past several months do not want to spend 18 months in prison. If they were put in that position, we would very likely learn who did the leaking. Those officials could then be indicted. A prosecution against government officials does not entail the same free-speech complications.
On the other hand, even if the subpoenaed reporters flouted the law by never giving up their sources — even if they took the incredibly arrogant position that their secrets take precedence over the nation’s secrets — 18 months’ imprisonment is a powerful disincentive. Fewer reporters would run the risk. Fewer would-be government leakers would bank on a reporter’s perseverance. The leaks would dry up in a hurry.
That ought to be the goal here.
— Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.