As The Trump Administration Cracks Down Technology Makes Leaking Easier

The Trump administration may start to subpoena journalists more frequently as a way to track down sources of leaked information.

By Jill AmentAugust 7, 2017 2:19 pm

Last Friday, U.S. Attorney General Jeff Sessions announced the Department of Justice would be cracking down on what he calls the “culture of leaking” that’s besieged the Trump administration.

Sessions says Trump’s Justice Department has more than tripled investigations into leaks since the president took office, compared to the Obama administarion. And Sessions promised the DOJ would not hesitate to prosecute leakers of classified information.

So how does the number of leaks coming out of the Trump White House stack up to past administrations? Professor Bobby Chesney, director of the Robert Strauss Center for International Security and Law at the University of Texas, says leaks are as old as the presidency itself, but that their frequency and the public debate over them have ramped up under Trump’s presidency. Digital technology is partly to blame.

“Technological changes disrupted the entire media space,” he says.

When the Pentagon Papers were leaked in the 1970s, for example, there were media gatekeepers like Washington Post Executive Editor Ben Bradlee, Chesney says. And it was up to him and other newspaper editors to decide whether or not to publish sensitive information. These days, a potential leaker has easy access to numerous media outlets, some with less rigorous editorial standards.

“If you’re Edward Snowden…you can go to the Washington Post, and if they don’t want to publish some of it, well, then you can turn to a foreign newspaper. Go to the Guardian in the U.K., and if they don’t want to do it, well maybe go over to Der Spiegel in Germany, and if they don’t want to do it, well maybe just go to WikiLeaks and see if Julian Assange will help you out,” Chesney says.

But the Executive Branch does have ways to stop leaks, including firing government employees.

“You can lose your job. …If you’re leaking classified information, then you’re gonna lose your clearance,” he says.

Prosecution is a consequence only in serious cases. The government can use the Espionage Act to prosecute leakers of national defense information and certain types of intelligence information, Chesney says. But the law in this case only applies to the government employee, not to the journalist or publication that publishes the information.

“The federal government’s never prosecuted a journalist as a co-conspirator for actually leaking the information, and I don’t think that’s what they were signaling they were gonna do here,” he says.

Instead, Chesney says the Trump administration likely will subpoena journalists to try to compel them to give up their sources. And legally, it has the authority to do so. Chesney says the First Amendment does not protect journalists from being asked to give up their sources.

Historically, though, the DOJ has been careful not to overuse its subpoena power.

“Legal or not, there’s gonna be a real price to pay and as some people would say, you ought not to pick a fight with people who buy ink by the barrel,” Chesney says.


Written by Caroline Covington.