Talking ten theses, with footnotes

On Monday our friend Seth Leibsohn invited me to appear on Phoenix AM 960’s Seth and Chris Show yesterday afternoon. Seth asked me to discuss my post on the law, the leaks and the New York Times.

My discussion with Seth frames the background to my “Ten theses on leaks.” What is to be done? In my view, the Trump Department of Justice must pick its best case to prosecute a reporter or two who discloses highly classified national security information in violation of the Espionage Act or other such laws. It must get the word out that journalists and their publications are subject to the law of the land. Short of that, the circus will continue.

I would like to add the following footnotes to my ten theses.

1. I misstated the Judge Brinkema’s treatment of the Justice Department’s trial subpoena on James Risen in the course of our discussion. The Fourth Circuit reversed Judge Brinkema’s refusal to enforce the subpoena in United States v. Jeffrey Sterling, 724 F.3d 482 (4th Cir. 2013)(upholding subpoena of New York Times reporter James Risen in leak prosecution), cert. denied, Risen v. United States, No. 13-1009 (June 2, 2014).

2. My friend Elliot Rothenberg notes that the ten theses fail to take account of the Supreme Court’s decision in Bartnicki v. Vopper, 532 U.S. 514 (2001). In Bartnicki the Court held that the First Amendment protected the publication of lawfully obtained information that was itself obtained illegally. The Court held that federal law making it a crime to intercept and disseminate telephone conversations cannot constitutionally be applied to the media when they report on matters of public concern.

Does Bartnicki suggest that journalists are immune from prosecution under the Espionage Act or similar laws? The Court’s fundamental factual predicates in Bartnicki were that the media defendants played no part in the underlying illegal conduct and that their access to the information was obtained lawfully. In the case of leaks of highly classified information, however, the leaking is itself illegal. Bartnicki is readily distinguishable from the facts involved in the kind of leak case that I am addressing in my theses.

3. My views on the issues addressed in my ten theses are strongly influenced by the case of Jeffrey Sterling. Interested readers should note Gabriel Schoenfeld’s Weekly Standard articles on the case including “Not every leak is fit to print” (2008), “What gives?” (2010) and “A privileged press?” (2014) as well as Schoenfeld’s Power Line post “A Risen in the sun” (2014).


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