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By Heidi Kitrosser*
President Trump supports accountability regarding his campaign’s alleged contacts with Russia. He is similarly responsive to stories about his administration’s early missteps, including embarrassing phone calls with world leaders and the crafting of the controversial travel ban. The accountability that he has in mind, however, is not for himself or his surrogates. Rather, as he has said (and tweeted) again and again, “[t]he real story is all of the illegal leaks of classified and other information.” The “low-life leakers,” he has warned, “will be caught!” In mid-February, President Trump told the White House press corps that he has directed the Justice Department to open an investigation into “criminal leaks.” And just last Thursday night, Attorney General Sessions responded to reports of his own alleged misstatements regarding contacts with Russia by telling Fox News’ Tucker Carlson that he finds recent leaks “troubling” and that “[a] lot of it would appear to be in violation of the law.”
It is true, as both Trump and Sessions suggest, that many leaks of classified information could be found to violate federal criminal laws. Although the United States lacks an official secrets act that automatically criminalizes classified information leaks, it has a patchwork of laws that come close to having that effect. Yet the fact that most classified information leaks plausibly could be subject to prosecution does not mean that every such leak should be prosecuted. More importantly, it does not follow that the existing legal framework – whereby the executive branch has enormous discretion to prosecute leaks of classified information – is a wise one.
In fact, the existing framework poses a grave threat to the freedoms of speech and the press. Elsewhere, I have argued at length that it poses serious constitutional questions. Even putting aside the Constitution, however, the current framework amounts to very bad policy. To understand why this is so, one first must grasp a key bit of context. That is, the classification system is dangerously bloated. This fact has long been acknowledged by experts from across the political spectrum. For example, Erwin Griswold, who served as Richard Nixon’s Solicitor General, deemed it “apparent to any person who has considerable experience with classified material that there is massive overclassification and that the principal concern of the classifiers is not with national security, but rather with governmental embarrassment of one sort or another.” Given classification’s ubiquity, leaks of classified information by government employees make up much of journalism’s lifeblood. More so, many leaks come from the very top, engineered by or with the tacit approval of the White House.
Under the existing legal framework, then, administrations effectively have sweeping discretion to classify politically inconvenient information and to prosecute – as well as to deter through the threat of prosecution – those who might leak such information. At the same time, administrations are free to selectively leak or declassify information that casts them in a favorable light.
The dangers of this framework are hardly unique to the Trump administration. Indeed, I was highly critical of the Obama Administration for bringing an unprecedented number of leak prosecutions throughout its tenure. Along with many others, I also criticized the Obama Administration’s use of heavy-handed investigative tactics. Yet while the existing legal framework and its dangers did not originate with the Trump administration, President Trump’s open hostility toward a free press, his constant references to leaks to deflect criticisms of himself, and his admission that he personally instructed the Justice Department to investigate leaks, cast a new and glaring spotlight on those dangers.
So what is to be done? Certainly, I would like to see courts take a more robust view of leakers’ First Amendment rights. But Congress can and should act as well. At minimum, Congress should amend the Espionage Act to enable courts to consider the degree to which a given leak serves the public interest. Currently, the public interest in leaked information is simply irrelevant under the Espionage Act and other anti-leaking laws. There are multiple ways in which Congress could make the public interest a part of the calculus in leak prosecutions. For one thing, it could incorporate a balancing test directly into law. An alternative approach, which Professor Yochai Benkler of Harvard Law School has proposed in the journal associated with this blog, would be for Congress to establish a “public accountability defense” that leakers could invoke to defend otherwise illegal leaks of classified information. Whatever the specific means chosen, it is well past time to curtail the dangerously sweeping discretion that the executive branch holds to manipulate the free flow of information through misuse of the classification system and anti-leaking laws.
*Heidi Kitrosser is a Professor of Law at the University of Minnesota Law School. She is an expert on the constitutional law of federal government secrecy and on separation of powers and free speech law more broadly.