Experts unconvinced DOJ crackdown, Sessions' threats will deter leakers

Attorney General Jeff Sessions, accompanied by, from left, National Counterintelligence and Security Center Director William Evanina, Director of National Intelligence Dan Coats, speaks during a news conference at the Justice Department in Washington, Friday, Aug. 4, 2017, on leaks of classified material threatening national security. (AP Andrew Harnik)

Attorney General Jeff Sessions announced an aggressive new effort to plug leaks in the Trump administration Friday, as even some of the president’s most vocal critics said one of the latest unauthorized disclosures may have gone too far.

At a press conference Friday, Sessions decried a “culture of leaking” in Washington and said he is taking action to address the “unprecedented” number of leaks from within the government since Donald Trump became president.

“Classified information, by definition, is information that if disclosed would do harm to our national security,” Sessions said. “As Director [of National Intelligence Dan] Coats will discuss, these leaks are incredibly damaging to our intelligence mission and capabilities. Simply put—these leaks hurt our country. All of us in government can do better.”

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According to Sessions, who has been accused of being “VERY weak” on the issue by the president, leak investigations by the Department of Justice have tripled since January. The agency has received nearly as many criminal referrals for leaks in the last six months as they had in the previous three years.

“We will investigate and seek to bring criminals to justice,” he said. “We will not allow rogue anonymous sources with security clearances to sell out our country any longer.”

On Thursday, the Washington Post published seemingly complete transcripts of January phone conversations between Trump and the leaders of Mexico and Australia. The paper had reported details of the contentious discussions several months earlier, but the transcripts provided a rare and often unflattering look at the new president’s attempts to preserve his public image.

“No one is entitled to surreptitiously fight their battles in the media by revealing sensitive government information,” Sessions said Friday. “No government can be effective when its leaders cannot discuss sensitive matters in confidence or to talk freely in confidence with foreign leaders.”

Sen. Orrin Hatch, R-Utah, said the release of the documents was inexcusable, but it is emblematic of the behavior of Democrats and "leftists” who want to destroy Trump.

“It’s terribly serious,” he said. “Because [world leaders] need to be able to talk turkey and be able to talk about what really happens, so I really am very concerned about it.”

While many of the leaks that have proven damaging to Trump since January have been welcomed by his political opponents, even top Democrats shared Sessions’ concerns about this one.

“Leaked transcripts of conversations between the president of the United States and other world leaders is unacceptable,” Sen. Ben Cardin, D-Md., told Sinclair. “It puts a chilling effect on whether world leaders want to talk to the president and the president having candid discussions.”

Sen. Mark Warner, D-Va., told the Daily Beast the leak was “disgraceful” and should be investigated by Congress.

Others on the left maintained that the ends justify the means. On “The View” Friday, Rep. Maxine Waters, D-Calif., said she is happy to know what was said in these calls and suggested the leaks are ultimately Trump’s own fault.

“The leadership starts at the top, and it is this president that his own people have no confidence in,” she said. “They’re undermining him because they want to see him stop, they want us to do something.”

According to Carey Cavanaugh, a former ambassador and a professor at the University of Kentucky’s Patterson School of Diplomacy and International Commerce, the disclosure of the transcripts could have lasting consequences for President Trump’s relationships with other world leaders.

“Leaks such as these may make some of Trump’s counterparts think twice before being fully open with the president,” he said. “Such conversations are normally classified confidential because it is essential that leaders be able to be completely frank and honest when they raise difficult and challenging issues.”

However, Cavanaugh observed that these particular calls paint the leaders of Mexico and Australia in a relatively positive light defending their country’s interests against a seemingly ill-informed and unpersuasive Trump.

“They reveal a lack of preparation and briefing on key policy issues, convey weakness in advancing U.S. positions, and underscore Trump’s focus on his personal political needs rather than those of our nation,” he said.

The White House offered little reaction to the transcripts on Thursday. Deputy Press Secretary Lindsey Walters told reporters such leaks are not beneficial to anyone and are damaging to America’s interests.

“This is a national security matter when phone call transcripts are being leaked out,” she said. “It prevents the President from being able to do what he does best and negotiate with foreign leaders.”

The phone transcripts were not the only significant leak surrounding the Trump administration to hit the press Thursday. The Wall Street Journal reported that special counsel Robert Mueller has impaneled a grand jury in his investigation of Russian interference in the 2016 election, and CNN revealed that Mueller’s probe has turned to the Trump family’s finances.

Although every administration inevitably leaks from time to time, experts say the abundance of unauthorized sharing of information under Trump is somewhat different.

“There’s much more leakable information,” said Alan Morrison, associate dean of the George Washington University Law School. “There are obviously people even within the Trump White House who are displeased with what their boss is doing.”

According to Mark Fenster, author of “The Transparency Fix: Secrets, Leaks, and Uncontrollable Government Information” and a professor at the University of Florida’s Levin College of Law, the Trump administration suffers from the forces that typically lead to leaks as well as some unique factors that exacerbate the problem.

“In addition to civil service employees who disagree with the president on substantive matters, there might also be presidential appointees who are leaking in order to bolster their own professional or to further their preferred policy aims,” he said.

“This administration has also broken with several longstanding traditions, rightly or wrongly, purposely understaffed the State Department—and hired an outsider to run it—and seems unable to coordinate itself,” he added. “The president often contradicts or berates his own Cabinet members. This is not a tightly run ship.”

Cavanaugh also cited a lack of a strong ethical example within the administration that may lead those who encounter wrongdoing and falsehoods to believe they have no choice but to turn to the press.

“The reluctance of the Trump administration to be fully truthful has probably been the impetus for many of the leaks that have plagued it from the start,” he said.

Saying you want to increase prosecution of leaks, as Sessions did Friday, is easy. Building more viable cases against leakers is much more difficult, legal experts say.

“Difficult, not only because reporters understandably attempt to shield their sources to whom they promised anonymity, but because the intent requirement for criminal liability can be difficult to meet,” Fenster said.

If the information was classified, and the Washington Post reports the transcripts did have notes indicating they were, Morrison said the leak may be criminal but it would still be hard to prove.

“The statute is written not with leakers in mind but with people that are really treasonous in mind,” he said.

On the other hand, people caught leaking could easily be fired if the DOJ manages to track them down.

“I think that’s the bigger danger for people that are working in the White House,” Morrison said.

As part of the effort to identify leakers, Sessions said the DOJ would be reviewing its policy on media subpoenas, raising the specter of future court orders and arrests aimed at forcing reporters to reveal sources.

“We respect the important role that the press plays and will give them respect, but it is not unlimited. They cannot place lives at risk with impunity,” Sessions said. “We must balance their role with protecting our national security and the lives of those who serve in our intelligence community, the armed forces, and all law abiding Americans.”

Sessions did not elaborate, but Deputy Attorney General Rod Rosenstein refused to rule out prosecuting members of the media for reporting classified information. Experts say journalists are right to be alarmed by that prospect.

“Even the threat to issue subpoenas is going to bother some people,” Morrison said, adding that the sheer number of leaks to multiple media outlets would require a lot of time and resources for the DOJ to enforce.

“That’s not a leak, it’s a pour,” he said.

According to Fenster, some leaks that hinder national security and law enforcement efforts may merit an aggressive investigation to uncover the source, but few of the leaks that have so incensed President Trump fall into that category.

“Most of the leaks to which the administration has objected have been embarrassing rather than harmful to the nation,” he said. “The president seems most exercised by those. Using subpoenas to stop bad press would be quite harmful.”

Some journalists have noted the Obama administration pursued reporters and subpoenaed their records in leak investigations as well, although former DOJ spokesman Matthew Miller said the mishandling of those cases led to reforms that Sessions might now roll back.

Short of assigning FBI agents to shadow every employee at all times, there is nothing the DOJ can do to prevent all leaks. The prospect of investigation may not serve as the deterrent Sessions wants it to be.

“Prosecution threats are a stick that are difficult to wield,” Fenster said.

Beyond the legal challenges involved, leak investigations can also be politically damaging. The Obama administration’s effort to step up prosecutions faced significant blowback, for example.

“The best way to protect against leaks is to have a well-coordinated, secure administration whose members understand their roles, believe in leadership, and feel that their organization is stable,” he said. “This tumultuous administration offers none of those things.”

That lack of stability and the constant churning of Russia-related developments, staff intrigue, and false information coming out of the White House leave experts skeptical that Sessions’ anti-leak crusade will end the culture of leaking.

“I think people will stop leaking when there’s no longer information worth leaking,” Morrison said.

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