The Justice Department Is Justified in Using All the Tools at Its Disposal To Hunt Down Leakers

COMMENTARY Crime and Justice

The Justice Department Is Justified in Using All the Tools at Its Disposal To Hunt Down Leakers

Jun 23rd, 2021 3 min read
COMMENTARY BY
Dustin Carmack

Research Fellow in Technology Policy

Dustin is a Research Fellow in Technology Policy at The Heritage Foundation.
Robert Mueller testifies before the House Intelligence Committee about his report on Russian interference in the 2016 presidential election on July 24, 2019 in Washington, D.C. Alex Wong / Getty Images

Key Takeaways

First came the charges that Donald Trump’s campaign colluded with the Russians to swing the 2016 presidential election.

Now recent reports have revealed that the Justice Department subpoenaed metadata records of journalists who had published the leaks as well as members of Congress.

Beneath the current uproar lies a simple question: Should law enforcement be allowed to investigate leaks of classified information or not?

Washington, it seems, just can’t let the Russia probe go.

First came the charges that Donald Trump’s campaign colluded with the Russians to swing the 2016 presidential election. A two-year investigation of those claims by special counsel Robert Mueller found no evidence of collusion.

With that disposed of, the Justice Department in 2019 launched an investigation into leaks of classified information that occurred during the Mueller investigation—leaks intended to wound the president politically.

Now Congressional Democrats and the media are in an uproar about that investigation. Recent reports have revealed that the Justice Department subpoenaed metadata records of journalists who had published the leaks as well as metadata records of several members of Congress and their staff suspected of leaking.

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Critics charge that those subpoenas constitute political abuse of the justice system. They have called for a new round of congressional investigations, and the Department of Justice’s inspector general has launched a review to gather more details.

Meanwhile, Attorney General Merrick Garland announced that prosecutors would no longer secretly obtain reporters’ records during leak investigations, a practice that was not unique to the Trump administration. In fact, former Attorney General Eric Holder did the same when hunting leakers during the Obama administration.

Absent from the current brouhaha—and apparently not even considered by Garland before rushing to announce that media records would henceforth be off-limits in his investigation—is any debate on how damaging leaks of classified information can be, both to the national security of the United States and to the women and men who risk their lives to keep our nation safe.

When Holder came under fire for subpoenaing information from an Associated Press reporter, former U.S. Attorney General William Barr, former Deputy AG Jamie Gorelick and former Assistant AG for National Security Kenneth Wainstein noted a 2013 New York Times commentary: “The leak of such sensitive source information not only denies us an invaluable insight into our adversaries’ plans and operations. It is also devastating to our overall ability to thwart terrorist threats, because it discourages our allies from working and sharing intelligence with us and deters would-be sources from providing intelligence about our adversaries.”

At times, leakers provide only limited snapshots of classified information, cherry-picked to make political impacts and drive narratives that do not reflect the entire picture. Examples of this include last year’s election season, where members of Congress often shared with reporters classified information obtained in behind-closed-doors briefings. As former Director of National Intelligence John Ratcliffe lamented in regards to classified election security briefings, “Within minutes of one of those briefings ending, a number of members of Congress went to a number of different outlets and leaked classified information for political purposes.”

Another example came last summer, when The New York Times reported on “Russian bounties” on U.S. troops in Afghanistan. That bombshell story, based on selectively leaked information, caused a political uproar throughout Washington. Yet Biden officials now say they have only “low to moderate confidence” in that information.

Why did this happen? Republican Arkansas Sen. Tom Cotton suggests this scenario: “Unfortunately, there are probably some people in the government who didn’t like Donald Trump, wanted to help Joe Biden get elected, and they selectively leaked it without providing the proper context to it.”

>>> Nothing Admirable About Leaking Classified Information

Leak investigations—even those dealing with national security matters—are notoriously difficult. When agencies suspect classified information has been leaked, they must file formal crime reports and then answer 11 specific questions. Then the Department of Justice must evaluate the complaints and assess how harmful the leak may be to national security.

Once a formal investigation is launched, the focus is generally on those in the federal government who have violated requirements for handling national security-related information. If prosecutors decide they must investigate members of the media who reported the information, they must first exhaust “all reasonable alternative investigative steps” before moving to subpoena media records which generally rely on metadata to narrow the investigation of the leaker pool.

Is leaking a necessary evil? No. There are whistleblower protection laws in place and channels to seek recourse through agency inspector generals.

Beneath the current uproar lies a simple question: Should law enforcement be allowed to investigate leaks of classified information or not?

Law enforcement needs to be able to subpoena records from whomever they reasonably suspect received leaked information, regardless of whether they are congressmen or journalists. The Justice Department should use all the tools at its disposal to hunt down and prosecute leakers.

This piece originally appeared in the Daily Caller