Editor’s Note: Harry Litman, is the former United States attorney for the Western District of Pennsylvania, deputy assistant attorney general in the Department of Justice, and currently Of Counsel at Constantine Cannon. He worked on John Kerry’s and Hillary Clinton’s campaigns for president. Molly Knobler is an associate at Constantine Cannon in Washington. The views expressed in this commentary are solely those of the authors.
Litman and Knobler: Trump administration's crackdown on leakers is an autocratic-style campaign that puts all of us at risk
Leaks are often the only way the public can learn about wrongdoing in the White House, they write
Attorney general Jeff Sessions’ recent declaration that “this culture of leaking must stop” is one of the most prominent instances of the Trump administration’s obsessive campaign against leakers and whistleblowers.
Kowtowing to the President, who as part of his public campaign of humiliation against Sessions had tweeted that his attorney general had taken a “VERY weak position on . . Intel leakers,” Sessions last week unveiled a Justice Department initiative designed to prioritize and streamline the prosecution of leakers.
Deputy Attorney General Rod Rosenstein was asked on “Fox News Sunday” about Sessions’ announcement and told Chris Wallace that the Trump administration intends to review the current limitations on the Justice Department’s ability to subpoena reporters for their sources and to prosecute “anybody who breaks the law,” including White House officials and members of Congress, if the circumstances warrant prosecution.
As attorneys for whistleblowers, who often come forward with what others consider confidential information that reveals serious legal violations or fraud against the government, we recognize that many people view whistleblowers with ambivalence or even hostility. Whistleblowers evoke a sense of the childhood tattletale, the kid with right on his side who is friendless in the schoolyard. However, whistleblowers make essential contributions to law enforcement and other important governmental policies.
No one would quarrel with the Trump administration’s efforts to clamp down on genuine national-security leaks. But the Trump administration has lumped together this traditional law enforcement function with virulent attacks on “leakers” as part of an autocratic campaign to govern in secrecy – and that puts all of us at risk.
Sessions has a point, not all whistleblowing deserves praise. Governments do have legitimate reasons to shield certain information, especially sensitive or classified information, from public view. The Obama administration was doggedly successful, for example, in enforcing the Espionage Act, drawing criticism by some for the number of cases pursued against leakers.
The Trump administration has taken it much further, however, declaring war on reporting of White House goings-on. Donald Trump has made attacking leakers his signature move in response to revelations of questionable conduct in the White House.
After disclosure of his son’s participation in a meeting that promised Russian-sourced “dirt” on Hillary Clinton, for example, President Trump tweeted: “While all agree the U.S. President has the complete power to pardon, why think of that when only crime so far is LEAKS against us. FAKE NEWS.”
Donald Trump’s tendency to indiscriminately lump together any negative reports about him as improper “leaks” is most apparent in his response to former FBI Director James Comey’s testimony about the President’s bizarre behavior during their private meetings. He tried to deflect public attention by tweeting about Comey’s admission that he asked a friend of his to share the content of memos about their meetings with the press. He branded Comey a “leaker” whose actions are “illegal” and “cowardly.”
And – taking another page out of the autocrat’s playbook – there is some evidence that President Trump believes the rules he is screaming about don’t apply to him. On Tuesday, The Associated Press reported that Donald Trump retweeted a Fox News report that was based on anonymous classified US intelligence sources about North Korea’s anti-ship cruise missiles.
Meanwhile, all the convulsive personnel moves in the White House seem to be driven first and foremost by the obsession with preventing leaks from within the dysfunctional White House. Anthony Scaramucci, whose short-term stint as communications director was brought down by his own outreach to the press, said he’d been brought on as a “special purpose vehicle” to stop White House leaks. He in turn insisted on the ouster of Reince Priebus as chief of staff for what he alleged was Priebus’ role in leaking information (a charge Priebus denies). Former Trump campaign manager Corey Lewandowski told “Fox and Friends” that John Kelly was chosen as the new chief of staff because Priebus was “ultimately responsible” for being unable to control leaks from the White House: “Gen. Kelly was brought in to make sure those leaks do not continue.’”
Though there are elements of the burlesque to all this posturing, it would be a mistake to dismiss it as mere buffoonery. The Trump administration has moved to suppress information about White House operations by seeking to marginalize mainstream media’s access in the West Wing, severely limiting the President’s press conferences and imposing unprecedented limits on the daily press briefings. As a consequence, so-called leaks are often the only way the public has learned about such newsworthy and troubling matters as infighting among White House staff, politically motivated attacks on political enemies, and blunders by advisers, some of whom have next to no experience in their assigned portfolios.
If the White House can suppress this kind of information, and if the President can change the subject at every turn to scapegoat “illegal leaks,” then the public’s ability to understand the bizarre events inside the White House and to hold the administration to account for their actions would be sorely compromised.
The Trump administration is a clear example of why whistleblowing can have social and political benefits. Some whistleblowing is salutary, even vital, and should be encouraged. Congress has recognized as much, passing a series of laws to encourage whistleblowing. This recognition is well deserved. The Department of Justice has recovered for the American taxpayers over $30 billion since 2009 through use of the Civil War-era False Claims Act, most of this because of the courage and perseverance of whistleblowers.
Get our free weekly newsletter
More often than not, when fraud is redressed, crime is punished, or government is held accountable, it traces to an act of whistleblowing. We should bear that in mind when assessing the Trump administration’s self-serving desire to demonize and “end the culture of leaking.”