Leakers keep leaking, and presidents keep trying to stop them.
Leakers keep leaking, and presidents keep trying to stop them.
This is the first in a series of five columns on the recent revelations that the Justice Department, beginning in the Trump administration and continuing into the Biden administration, conducted investigations of leaks of sensitive information by government officials to members of the media. Those investigations reportedly involve subpoenas for communications records of several journalists, as well as other controversial information demands by investigators.
‘I said I was eager to find leakers and would like to nail one to the door as a message.” That, according to his memo-to-self, is what Jim Comey, then the FBI director, pronounced in the Oval Office on February 14, 2017. (See the Justice Department Inspector General’s 2019 report on Comey’s memos, pp. 73-74.)
At the time, Donald Trump was president, and he was fuming over leaks of classified information: of his conversations with the leaders of Mexico and Australia and of communications during the Trump presidential transition between Michael Flynn and the Russian ambassador. As he met with Comey that Valentine’s Day, the new president had just fired Flynn after less than a month on the job as national-security adviser, due to a controversy — regarding whether Flynn discussed accommodating Moscow on Obama-imposed sanctions — that had arisen out of these leaks.
Comey recalls agreeing emphatically that it was “terrible” for government officials to leak the president’s private conversations with foreign leaders and to expose FBI counterintelligence investigations, which are conducted to help presidents make decisions. When Trump opined that the only realistic way to catch government leakers was to focus on the journalists to whom they blab, Comey replied that, while he was “a fan of pursuing leaks aggressively,” the Justice Department tends to approach such investigations “conservatively” — “legal reasons,” he added, make them “tricky.” Comey agreed that he would speak with then–attorney general Jeff Sessions to “see what we can do about being more aggressive.”
Turns out they did indeed try to be more aggressive.
Today, over four years later, there is outrage in the land, much of it theatrical, over disclosures that the Trump Justice Department, like the Obama Justice Department before it, scrutinized members of the press while probing government officials suspected of disseminating classified information. This is the first in a series of five columns that will examine aspects of the leak investigations.
Leaking classified information can be a serious crime. You would not know that from the self-interested media coverage about leak probes. Nor is there much dwelling on how the left-leaning press gave cover and voice to its progressive allies in government-intelligence circles, who used leaks — often of bogus information — to undermine the Trump administration.
I described it in detail in Ball of Collusion. After Trump’s stunning victory over Hillary Clinton in the 2016 election, the Obama administration, congressional Democrats, and their allies in the intelligence community undertook to paralyze the Trump presidency by classified leaks. Most leaks were designed to frame the new president as a mole compromised by the Kremlin, but any intelligence that could damage the new administration would do. People connected to Trump were unmasked (or, in Flynn’s case, unabashedly targeted) in intelligence reporting. Days before leaving office, President Obama suddenly ordered an expansion of the rungs of intel officials to whom raw intelligence was accessible. These were not random events.
That’s why you had all the leaking.
Those highlighted words are not mine. They were spoken by Evelyn Farkas, a former top Obama Defense Department official. In a jaw-dropping March 2017 MSNBC interview, Farkas related how she’d encouraged Obama-administration officials and members of Congress to “get as much information as you can.” She elaborated, “That’s why you have the leaking.” Otherwise, Democrats surmised, “the Trump folks — if they found out how we knew what we knew about their — the Trump staff dealing with the Russians — that they would try to compromise those sources and methods[.]” As nonsensical as this sounds, it made perfect Washington sense: We right-thinking Democrats must expose secret intelligence lest the Trump administration keep it secret.
Of course, we now know that the Russia collusion narrative was partisan farce, fueled by the Clinton campaign, based on such embarrassing claptrap as the Steele dossier. But back in 2017, at the incessant urging of — all together now — “unidentified current and former intelligence officials,” the public was led to believe, every time it opened a newspaper or clicked on a news website, that the nascent Trump administration was actually a clandestine GRU operation.
So why couldn’t the administration muzzle the leaks?
Leak investigations, alas, are usually dead ends. Insider information is the press’s stock-in-trade. Journalists lionize leaking officials as vital, public-spirited whistleblowers and declare a right of constitutional pedigree to air the resulting disclosures. Consequently, there is little public pressure to ferret out the felonious government leakers, even though unauthorized disclosures of classified information — in Flynn’s case, for example, revelations to the Washington Post of top-secret FISA intercepts — are often more serious than anything that was turned up in the ballyhooed “collusion” caper.
As a practical matter, national “secrets” are too widely disseminated. Too many people — over 4 million — have government security clearances. It becomes nigh impossible to identify leakers. The slim choices that investigators have are to (a) subpoena journalists and threaten to have them jailed for contempt if they refuse to identify sources, (b) subpoena the communications records of journalists and suspected leakers in hopes of finding a timely connection, or (c) forget the whole thing and spare themselves the wrath of the fourth estate.
The Obama administration, particularly during Attorney General Eric Holder’s tenure, covertly and zealously perused journalists’ communications records — even though the media was overwhelmingly pro-Obama — because it saw the wisdom in enforcing discipline. The Trump administration aggressively pursued leak investigations because it was trying to survive as a functioning government.
The current tempest over leaks covers four categories: 1) the investigation of journalists, 2) an alleged investigation of congressional Democrats who were notoriously anti-Trump, 3) an investigation of Don McGahn conducted even as he was serving as Trump White House counsel, and 4) an investigation of Director Comey who, notwithstanding his professed in terrorem desire to nail leakers to the door, (a) did himself famously orchestrate a leak (for which he was excoriated by Michael Horowitz, the DOJ inspector general originally appointed by Obama) and (b) was suspected by the Trump Justice Department of other leaks — though these have never been charged, much less proved.
(Comey’s deputy, Andrew McCabe, leaked investigative information to the press and, after being similarly scalded by the inspector general, was fired for misleading investigators about it. He claims Comey knew about it, which Comey convincingly denies.)
As is appropriate, IG Horowitz is now assessing whether the Justice Department’s investigative measures were justifiable. Comey was right when he explained to Trump in 2017 that leak cases raise tough legal and policy issues.
In the four columns that follow, we’ll look at the above-described categories of investigation. What we’ll find, especially upon examining the context in which unauthorized disclosures of classified information took place, is that the leak is sometimes the least intriguing part of the story.