For AG Sessions, ten theses on leaks

This past Friday Attorney General Sessions held a news conference to announce the Justice Department’s dedication to stopping the flood of leaks of classified information that is undermining the Trump administration and damaging our national security. The transcript of Mr. Sessions’ statement at the press conference is posted here.

What is to be done? This was the only potential reform of policy or practice mentioned by Attorney General Sessions: “[O]ne of the things we are doing is reviewing policies affecting media subpoenas.” After getting burned by its friends in the media, the Obama Justice Department adopted a restrictive policy. The Trump Justice Department must be considering something of a return to the status quo ante.

Despite the dedication and bravado in Attorney General Sessions’s statement, it looks to me like a confession of futility. Consider that the status quo ante did precisely nothing to produce testimony from reporters in leak cases.

What is to be done? I address the following ten theses to Attorney General Sessions and interested readers.

1. The government cannot legally seek to restrain publication under any circumstances other than some kind of dire emergency (and then it would have to prove it). See New York Times v. United States, 403 U.S. 713 (1971)(“the Pentagon Papers case”). We know that prior restraint is off the table as a general rule.

2. The Pentagon Papers case leaves open the door to criminal liability on the part of newspapers and journalists. Justice White noted in his concurring opinion, for example: “The Criminal Code contains numerous provisions potentially relevant to these cases…. If any of the material here at issue is of this nature, the newspapers are presumably now on full notice of the position of the United States and must face the consequences if they publish.”

3. Reporters who obtain and disclose highly classified information are almost always the sole witnesses to the substantive crimes involved in the leaking of classified information. In these particular whodunnits, they know who.

4. The testimony of the reporter involved could therefore shortcut the investigatory phase of a leak prosecution which might otherwise proceed at a snail’s pace. Under whatever policy — restrictive or expansive — might be applicable to the issuance of subpoenas to the reporter, the reporter’s testimony is frequently necessary to discover the source of the leak.

5. The reporter’s testimony is also subject to the compulsion of a subpoena. See, e.g., United States v. Jeffrey Sterling, 724 F.3d 482 (4th Cir. 2013)(upholding government trial subpoena of New York Times reporter James Risen in leak prosecution), cert. denied, Risen v. United States, No. 13-1009 (June 2, 2014).

6. Yet a reporter only obtains the the leak of classified information on the promise of confidentiality because the source knows the leaking is illegal. A reporter would rather be held in contempt for failure to comply with a subpoena than testify to the source of a given leak where the reporter has promised the source confidentiality. Reporters like Risen are held up by their colleagues as heroic martyrs to the First Amendment when they protect their criminal sources. The threat of a reporter being held in contempt is an ineffective route to the information. It will not get you there.

7. The government protected its right to secure the enforcement of the trial subpoena on Risen in the Sterling case after lengthy appeal proceedings up to and including the Supreme Court (which declined review of the Fourth Circuit decision). After securing its right to enforcement of the subpoena, the government simply gave up its effort to obtain Risen’s testimony identifying his source because Risen said he wasn’t talking.

8. The Sterling case presents a painful illustration of the difficulty of prosecuting a devastating leak case without direct evidence of the leaker’s guilt. The leak occurred in 2002 or 2003. The government’s investigation relied on circumstantial evidence. The path to Sterling’s indictment was long and tortuous.

9. Sterling was indicted in 2010. He was convicted at trial in 2015, more than ten years after the leak occurred. The Fourth Circuit just affirmed all but one of Sterling’s convictions in a decision released in June of this year. United States v. Jeffrey Sterling, No. 15-4297 (June 22, 2017).

10. Pick your best case to prosecute the reporter who serves as a conduit for the dissemination of highly classified information damaging to our national security, either with or without his source(s) as codefendants. Make the reporter pay the price. Brand him a criminal. Let’s get it on. Anything short of this is a sideshow.

If I am wrong, where am I wrong?