Judge Andrew P. Napolitano,
Last week, President Donald Trump erupted with fury over a series of public revelations of private facts — some top-secret and some office gossip — that painted him and his White House in a bad light. The president ordered the FBI to investigate some of these so-called leaks and his own White House counsel to investigate others.
There are numerous issues related to the leaking of government information. They include the leaking of classified information, the leaking of confidential communications and the publishing of leaked material.
Here is the back story.
It is a felony to reveal classified information to any person who lacks a classified clearance, as some in the intelligence community have recently done to embarrass, control, intimidate or infuriate the president. The National Security Agency employs over 60,000 domestic spies, but they work in compartmentalized areas. Thus, not all of them have access to all the data collected by all of their colleagues. Only about 100 spies have access to the top-secret data that was leaked about the president.
When members of the intelligence community leaked lurid allegations about the future president’s alleged behavior in a Moscow hotel room, which he has vehemently denied, and when some leaked the partial transcripts of telephone conversations between retired Lt. Gen. Michael Flynn and the Russian ambassador to the U.S. — shortly before Flynn became the president’s national security adviser — and when some leaked an intelligence report that contradicted the president’s publicly stated conclusions on the likelihood of dangerous people immigrating to the U.S. from the seven predominately Muslim countries named in the president’s now enjoined temporary travel ban, one can understand the presidential anger.
And leaks are a two-sided coin. Adding to Trump’s woes caused by too much revealing is the other side of that coin — too much concealing.
This comes into play when one has a duty to reveal. That duty arises from the legal obligation of spies to pass on to their superiors — and ultimately to the president — all of the material information they have acquired about America’s friends and enemies.
Selectively concealing and revealing this type of intelligence data, thereby manipulating the presidential judgment, when one has a duty to reveal substantially all of it is a form of interference with a governmental function — namely, the president’s exercise of his judgment — and that is a felony.
As if all this were not enough for a young presidency to deal with, Trump finds himself with a White House staff leaking to the press Oval Office gossip about confidential conversations from within the White House that the participants in those conversations had every reason to believe would not be made public. This resulted in the temporary seizure of government-issued cellphones held by a dozen or so staffers so their bosses could learn whether any had spoken to the press. The cellphones episode was itself leaked, apparently by a participant not happy with it.
What’s going on here?
These events are either the growing pains of a new presidential administration, still partially staffed by those loyal to former President Barack Obama, or the product of sinister forces from people attempting to exercise their own judgment about America’s foes by frustrating and manipulating the judgment of the president — whom the voters elected to exercise the constitutional powers to make those judgment calls. The latter situation would be perilous, as it would mean we have unelected, unaccountable and unnamed people pulling the levers of power in the field of national security.
The leaks of confidential communications from within the White House may be a pain in the neck for the president, but they are not criminal. And generally, a boss can look at an employee’s cellphone, as long as the employer of the boss and the employee owns the phone — except when the employer is the government. The Fourth Amendment insulates government employees from governmental reach into its employees’ cellphones. Absent an employee’s waiving his Fourth Amendment rights, the government may not seize work-related (governmental) or personal phones without a search warrant.
Can the media publish these leaks?
In a word, yes. The media may publish anything that is of material interest to the public, notwithstanding its level of secrecy or how it was acquired. The First Amendment — which the courts have construed to treat the media as the eyes and ears of the public — protects absolutely the publication by the media of leaked data, whether gossip or top-secret, that the public wants to hear.
The courts have also ruled that everything about the president is of material public interest — meaning no criminal or civil action can be taken against the media for the publication of any leaked materials that reflect on the president as a person or as a government official. When The New York Times published a probably stolen copy of Trump’s tax returns, it did so with impunity.
One can see why Trump rails against the press. Yet he has taken an oath to preserve, protect and defend the very constitutional principles that protect and liberate a free press from the anger of the government, no matter how well-grounded that anger may be. One of his predecessors who was savaged by the press, Thomas Jefferson, wrote that accountability and transparency in government are of such overriding value that he’d prefer newspapers without a government to a government without newspapers.
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey.