By Matt Zapotosky and Devlin Barrett,
Attorney General Jeff Sessions said Friday that the Justice Department has more than tripled the number of leak investigations compared with the number that were ongoing at the end of the last administration, offering the first public confirmation of the breadth of the department’s efforts to crack down on unauthorized disclosures of sensitive information.
Sessions made the announcement at a long-anticipated news conference with his deputy, Rod J. Rosenstein, as well as Director of National Intelligence Daniel Coats and National Counterintelligence and Security Center Director William Evanina.
Sessions said in the first six months of this year, the Department of Justice had received nearly as many criminal referrals involving unauthorized disclosures of classified information than it had received in the past three years combined. Though he did not say if it resulted in a criminal referral, Sessions cited in particular a recent disclosure to The Washington Post of transcripts of President Trump’s conversations with Mexican President Enrique Peña Nieto and another with Australian Prime Minister Malcolm Turnbull.
Sessions said prosecutors had charged four people with unauthorized disclosures of classified information or concealing contacts with foreign officers. It was not immediately clear which prosecutions he was referring to. Only one leak prosecution had been previously known.
Sessions also said he was devoting more resources to stamping out leaks — directing Rosenstein and FBI Director Christopher A. Wray to actively monitor every investigation, instructing the National Security Division and U.S. attorneys to prioritize such cases and creating a new counterintelligence unit in the FBI to manage the work. He said he was reviewing the Justice Department’s policy on issuing subpoenas to reporters.
“This culture of leaking must stop,” Sessions said.
Trump has complained vociferously about unauthorized disclosures of information — casting the issue as more worthy of attention than the investigation into whether his campaign coordinated with the Kremlin to influence the 2016 election.
Sessions, too, has said previously illegal leaks are “extraordinarily damaging to the United States’ security” and confirmed that such disclosures were “already resulting in investigations.” His work on the matter, though, has apparently not been to the president’s satisfaction. Last week, Trump wrote on Twitter that his attorney general had taken a “VERY weak position” on “Intel leakers.”
Conspicuously absent from Friday’s news conference were representatives for the FBI, which generally investigates leaks. Rosenstein said that was probably because Wray had just started his job as director of the FBI earlier this week.
Several prominent conservatives lauded Sessions’s announcement, while open government and free press groups said it was worrisome. The Reporters Committee for Freedom of the Press said it would “strongly oppose” revising department guidelines on issuing subpoenas to reporters, and Danielle Brian, executive director at the Project On Government Oversight, said leak investigations might inappropriately target well-intentioned whistleblowers.
“Whistleblowers are the nation’s first line of defense against fraud, waste, abuse, and illegality within the federal government, the last thing this administration wants to do is to deter whistleblowing in an effort to stymie leaks,” Brian said.
Leak cases are difficult to prove and prosecute, and they almost always come with political controversy — especially when the leaks involve providing information to reporters that is arguably in the public interest.
Attorney General Eric H. Holder Jr. issued new guidelines in 2015 to the department’s policy on obtaining information from members of the news media, after his Justice Department came under fire for the tactics prosecutors used in bringing such cases.
The Obama administration had taken an especially aggressive stance on leaks. Prosecutors in the Obama era brought nine such cases, more than during all previous administrations combined, and in the process, called a reporter a criminal “co-conspirator,” and secretly went after reporters’ phone records in a bid to identify reporters’ sources. Prosecutors in the Obama administration also sought to compel a reporter to testify and identify a source, though they ultimately backed down from that effort.
At a briefing after the news conference, Rosenstein, the deputy attorney general, declined to say whether the Justice Department might decide to prosecute journalists for reporting on classified information.
Rosenstein said that part of the expanded effort to fight leaks includes a top-to-bottom reevaluation of the Justice Department’s own rules for how it investigates disclosures of classified information.
It has long been Justice Department practice in leak investigations to try to avoid investigating journalists directly to find their sources. Instead, the policy has been for investigators to first focus on government employees. In some cases, when the scrutiny of government employees has been exhausted, senior Justice Department officials may authorize an investigation of journalists, possibly by examining their phone records.
As a result, leak investigations are often slow moving, and many never lead to any charges. Within the FBI and the Justice Department, agents and prosecutors who handle leak cases have long argued that if they could investigate journalists earlier and more aggressively, they could be more successful in prosecuting leak cases.
“We are reviewing the entire process of how we conduct media leak investigations by responding to issues that have been raised by our career prosecutors and agents,’’ said Rosenstein. “We’re taking basically a fresh look at it… We don’t know yet what if any changes we want to make but we are taking a fresh look.’’
Sessions said the Justice Department must “balance the press’s role with protecting our national security and the lives of those who serve in the intelligence community, the armed services and all law abiding Americans.”
So far, the Justice Department under Sessions has publicly announced charges in just one leak case. Reality Leigh Winner, a 25-year-old government contractor, was charged in June with mishandling classified information after authorities said she gave a top-secret National Security Agency document to a news organization.
Trump’s presidency has been dogged by a steady stream of information provided to reporters by anonymous sources, though not all of those have involved classified information and many of the disclosures were probably not illegal.
Trump, for example, has complained that former FBI director James B. Comey’s decision to engineer a leak of information about a conversation he had with the president was “illegal,” when legal analysts say that is not likely the case.
Comey has conceded publicly that he told a friend to give a reporter information about his recollection of the president’s request that he shut down the bureau’s probe into former national security adviser Michael Flynn. But he said he did not share classified material.
Prosecutors who bring charges against people for sharing information with the public can do so only when classified or other national security material is at issue. Material cannot be classified to conceal legal violations or prevent embarrassment, according to an executive order from President Barack Obama.
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