Leaking, and even illegal classified leaking, has been a big problem in Washington for years. Failing @nytimes (and others) must apologize!
—President Donald Trump, Feb. 16, 2017
Boy, I love reading those WikiLeaks!
—Candidate Donald Trump, Nov. 4, 2016
ON JUNE 5, 2017, the news website The Intercept published a major story about Russian interference with the U.S. elections. “Top-Secret NSA Report Details Russian Hacking Effort Days Before 2016 Election,” the headline read. The article was built from a “highly classified” report from the National Security Agency that had been provided anonymously to Intercept reporters. It detailed a Russian cyberattack on an election software supplier and attempts by the Russians to compromise the email accounts of more than 100 local election officials on the eve of the 2016 election. The article was significant, but unmentioned in it was a second developing story in the background: the source for the piece, an NSA contractor with the unlikely name Reality Winner, had been arrested two days earlier in Georgia, accused of leaking the classified document about the Russian effort. Any doubts about whether the Trump administration was going to get serious about leaks disappeared on that Saturday afternoon when armed agents arrested Winner as she returned home from the grocery store.
Journalists would ferociously debate whether The Intercept reporters were responsible for Winner’s apprehension. The Intercept denied it, but, according to the government, the reporters had shared a photo of the original document with an NSA contractor as they sought to authenticate the report. Creases visible in the paper suggested that the reporters had received a hard copy, and that led investigators to a small group of people who had access to the paper document. One of them was Winner. But the finger-pointing was a distraction from the real takeaway: reporters were now on notice that their sources were in the crosshairs of the Jeff Sessions DOJ.
The president himself had his own dizzying past with leaked and hacked documents. During the campaign, Candidate Trump had been loving the emails that WikiLeaks had obtained from the Democratic National Committee and party bigwig John Podesta. “This WikiLeaks stuff is unbelievable,” he said in October at a Florida rally. “It tells you, the inner heart, you gotta read it.” But by February 2017, he was President Trump, anti-leaks jihadist blasting away at The Times for publishing stories based on leaks coming from a White House where competing factions seemed to spend as much time whispering to reporters as talking to each other. In fairness, his warm embrace of WikiLeaks was more about hacked documents stolen by outsiders from servers than documents leaked to reporters by government employees. But whatever the case, his anti-leak tweets were the first shot fired in a war on leaks. Before long, Sessions was dispatched to warn federal employees that they would be in serious legal trouble if they didn’t stop talking to journalists without authorization, and the Justice Department announced that it intended to make it easier to subpoena journalists during leak investigations as prosecutors ramped up their efforts to track down the people inside government who dared to disclose the truth about what was really going on in the new administration.
And then there was the sliming part of the campaign.
In July 2017, Trump tweeted: “The Failing New York Times foiled U.S. attempt to kill the single most wanted terrorist, Al-Baghdadi. Their sick agenda over National Security.” The president had watched a Fox News report that was presidential red meat: an account of remarks made by General Tony Thomas at the Aspen Security Forum. Thomas blamed a 2015 leak to The Times for disrupting a U.S. operation aimed at capturing the head of ISIS, Abu Bakr al-Baghdadi. The nub of Thomas’s complaint was that U.S. forces had captured the wife of a senior ISIS leader during a raid that killed her husband and that she had given U.S. troops a “treasure trove of information” about Baghdadi’s location. That lead “was leaked in a prominent national newspaper about a week later, and that lead went dead,” Thomas told the crowd at Aspen.
The only problem with Thomas’s account was that it was wrong. The leader’s wife was captured on May 16, 2015. Her capture was publicly reported that day—by the Pentagon. The Times later reported that the raid had harvested important intelligence data about ISIS. Only it was not a week later, as Thomas said at Aspen, but more than three weeks later. Unless the U.S. military was sitting around doing nothing for three weeks, and Baghdadi had somehow missed the very public news of the wife’s capture and the death of his top aide (before reading The Times that morning), The Times’s reporting had nothing to do with the failure of U.S. forces to capture the ISIS leader. That, of course, would not have been much of a story for Fox News or the president.
Leaking is a hard topic for lawyers. Whether we grow up to be tax lawyers or defenders of killers, help tenants avenge the misdeeds of their landlords, or shepherd the blissless through divorce court, we are baptized in the rule of law. We may try to twist legal precedents, urge courts to look at laws in nutty ways, and see exceptions where none could possibly exist, but at base we believe in rules and rationality and orderliness. We seek tidiness in a messy world.
Leaking, whether you call it that or dress it up as whistleblowing, is about just the opposite: going outside the lines, breaking the rules, and sometimes breaking the law.
Which is why it is so important.
When the rule of law is threatened or compromised—and let’s face it: it is only as good as those charged with keeping it and honoring it—there is precious little to save democracy’s day other than transparency: shining the harsh light of truth on the people in power trying to subvert legality, corrupt lawful process, or undermine justice. The executive branch gets to decide who the investigators are, who gets investigated, who gets charged with a crime, and, in the end, who gets pardoned. It is a stunning amount of power. And it becomes a scary stunning amount when it is coupled with the ability to decide who gets silenced and how much truth makes its way to the American public. That is so even when the ultimate executive holding that power isn’t also standing dead center in the middle of an investigation.
Is every leak alike—a case of some beatified public servant saving the rule of law with a strategic phone call to a reporter in the nick of time? If only. Leakers are like other people: complicated. There are leaks done for petty motives or to avenge bad boss behavior. Some are the product of a misguided and obscure worldview, or done for no better reason than to stir the pot of politics. But every leak crackdown is alike: it works as a deterrent and threatens the future leaks that democracy depends on.
No president, Republican or Democrat, is ever going to embrace what Sessions calls the “culture of leaking.” Liberals didn’t like to dwell on it, but the fact was that the Obama administration had broken new ground in its pursuit of leakers, being more aggressive than any prior administration in prosecuting government workers accused of unauthorized disclosures. Leaking is the kind of topic that does not lend itself to simple answers (unless you are an attorney general with an agenda or a president with a Twitter account). You have to begin with two truths that run headlong into each other. You start here: a government needs to be able to keep some secrets. Real national security requires it, and even in the more prosaic corners of government, it is hard to manage in a fishbowl and get anything good done if every private memo and conversation is destined to be in a newspaper or on the internet. And then you go to the other side: Leaks are a powerful force for truth, and whether a government cracks down on leakers directly or bullies the press to find out who a reporter’s sources are, the result is the same—the public more often than not pays the price. When people are allowed to know only what the government wants them to know, they become little more than sheep in a fog. If you are a lawyer in leak-world, you inevitably find yourself advocating for something that could best be described as a modicum of unlawfulness, which is not a concept they teach you in law school. There should be laws against some types of leaking; they just shouldn’t be enforced very often. And the whole conundrum is made more complicated by this: the law does not allow leakers a public interest defense even if they can show that they acted for a higher purpose—a yawning gap in the law that is a disservice to democracy.
Over the Obama years, The Times had watched with anger and disbelief as the Justice Department initiated a series of leak investigations seeking the sources for stories we had published. Most went nowhere. But in the final months of the Obama administration we had come face-to-face with all the complexities of leak investigations and the uncertain rules of source-reporter relationships. In October 2016, retired general James E. Cartwright stood before a federal court and pleaded guilty to lying to the FBI agents who were looking for the sources of classified information used by David Sanger of The Times in his reporting on the most sophisticated cyber-operation ever conducted by one state against another: the joint U.S.–Israel attack on Iran’s nuclear program. It was a stunning and sad reversal of fortune for Cartwright, the former vice chairman of the Joint Chiefs of Staff, once called “Obama’s favorite general.” On the day of the plea, Cartwright’s attorneys at Skadden Arps had called me to give me the heads-up. I had been talking off and on to Cartwright’s legal team for more than three years. I started working the phones, first making sure we had someone ready to cover the court appearance, filling in whatever background I could for the Washington bureau, and then looping Sanger in before letting our corporate PR staff know that we were about to get hit by a wave of press calls.
We never want to be in that position: news makers rather than news reporters. We rarely want to be pressed into talking about our reporting, especially when it’s highly sensitive national security reporting. Still, the prosecution of Cartwright was outrageous. After years of investigation, there was no proof that any harm had been done by The Times’s reporting. (The computer code used in the cyberattack had leaked out in 2010 because of an error by the U.S. or the Israelis, revealing to Iran why its nuclear facilities were failing.) Prosecutors could not show that Cartwright had violated the Espionage Act. They were left to charge him only with lying to the FBI after he failed to keep his story straight when he talked to the investigators. We decided to take the opportunity to issue a political statement, to make the case for freedom of the press:
In researching his book Confront and Conceal and his stories for The New York Times, David Sanger relied on multiple sources in Washington, Europe, the Middle East, and elsewhere. Most of them spoke on the condition of anonymity. As in the past, neither The Times nor Mr. Sanger will discuss whether a particular person was a source or the sourcing of particular information that was published, beyond what has been disclosed in our stories and in the book.
Reporting like this serves a vital public interest: explaining how the United States is using a powerful new technology against its adversaries and the concern that it raises about how similar weapons can be used against the U.S. We will continue to pursue that reporting vigorously.
We are disappointed that the Justice Department has gone forward with the leak investigation that led to today’s guilty plea by Gen. Cartwright. These investigations send a chilling message to all government employees that they should not speak to reporters. The inevitable result is that the American public is deprived of information that it needs to know.
Shortly after the plea, I received another call from Cartwright’s lawyers. The judge had set sentencing for January, just before Inauguration Day. They wanted to know whether The Times and Sanger would be willing to put in a statement in support of Cartwright. The prosecutors were looking to give their guy up to six months of prison time, but reserved the right to ask the court for more. Could we help Cartwright out?
I had expected the question, and still I was unprepared for it. The relationship between a confidential source like Cartwright and a reporter is complicated. When reporters agree to keep a source’s identity secret, it is a big deal. They are willing to go to jail to protect that secret. But, beyond that, what is owed? It is one of journalism’s operating principles that reporters are independent from their sources. They don’t pay sources. The journalist and the source are not partners. Reporters avoid taking sides even when the people they have used as sources end up as parties in litigation. Readers expected that sort of professional distance. Readers want us to be honest brokers of the news, not mouthpieces for the people who spoke to us. But Cartwright’s case struck me as different. He was not some rogue insider recklessly spilling secrets for political or personal gain. While he was one of many sources in David’s reporting on the cyberattack code-named “Olympic Games,” they had met late in the process after David knew much about the program. The White House had encouraged David to meet with Cartwright to get fuller grounding on the topic of cyber-weapons.
Still, The Times had never stepped up so publicly in support of a source.
At the end of the afternoon on Election Day, as the newsroom buzzed outside Dean Baquet’s office, David and I met with the paper’s senior editors to make the case for writing a letter to the sentencing judge. There were risks, I said. The biggest was that the letter could open the door for David to be a witness at the sentencing hearing, where he could be asked about his reporting and his other sources. It seemed unlikely, but over the years we had burned through hundreds of thousands of dollars in legal fees trying to keep our reporters off the witness stand when they received subpoenas. To now voluntarily jump into a criminal case was not in our DNA. The optics of it weren’t great either. Any letter we wrote was certain to get coverage, much of it likely to be negative. Times critics would see us as having thrown our support behind a lying general who had betrayed his oath. Over at Fox, they wouldn’t overlook the fact that Cartwright was an Obama favorite. Closer to home, some journalism purists were going to say a line gets crossed when journalists decide to link arms with a source in a court proceeding.
Was there a way to avoid all of that and still write a letter that might do Cartwright some good? It was Election Day, and the editors in the room had more pressing things to do than debate the esoterica of a letter, even one that was going to be ridiculously hard to write and take The Times to a place that it had never gone before. They were happy to leave it to David and me to figure all that out.
Writing a letter to Donald Trump’s lawyers was one thing; this was another. This one was not going to be from the “let it rip” school of writing. This one was going to require us to keep our eyes on the ultra-thin line between saying something helpful and crossing over into advocacy about what the judge should do in sentencing, all the while avoiding, if we could, putting a target on David’s back. It was not hard to picture some eager-beaver federal prosecutors telling the judge they needed to explore through testimony whatever facts we put before the court.
My draft was bare bones, a tight four paragraphs, 11 sentences all in. No need to give the prosecutors anything more than we had to. The letter said that we believed Cartwright had acted in good faith with no intention to harm the country. I forwarded it to Sanger with the message “edit away.”
He did.
His version, when it arrived in my inbox a couple of days later, was no “less is more” letter. It was, instead, an attempt to make the judge understand how a certain type of national security journalism got done. Sometimes confidential sources expose misconduct or raise red flags, taking a calculated risk in doing so—think Edward Snowden—but much reporting on national security and law enforcement was like David’s. It was not cloak-and-dagger spy stuff, with government secrets triple-locked in a cabinet and then purloined by the source, who nervously passes them to a journalist under the cover of darkness. David had done deep reporting on the country’s cyber-warfare capacity, talking first to experts to parse the leaked computer code and find out who had written it. He then used sources in the U.S., Europe, and Israel to learn how the code, known as “Stuxnet,” had been written. There is a certain give-and-take to that kind of reporting, even as the reporter and the sources inevitably end up talking about classified matters, with the reporter trying to get the fullest story possible and the government trying to make the case for those facts that really need to be secret.
David’s letter explained that his interview with Cartwright had not been extraordinary. At one point, after David laid out to the administration what he planned to publish, the White House had authorized the deputy director of the CIA to meet with David and discuss his reporting and the risks of certain disclosures. And it was also a senior White House official who encouraged David to meet with Cartwright, one of the country’s most knowledgeable experts on cyber-warfare. “This is a standard, if little-understood, practice in the course of reporting on sensitive national security affairs,” David wrote. “Far from harming U.S. interests, his interview contributed to my efforts to provide the public with a comprehensive account of a critical new element of the American use of force, while trying to avoid harming future operations.”
As much as the government postures about how every secret absolutely has to stay secret or the world will go to hell in a handbasket, the reality on the ground is starkly different. For one thing, the government is not particularly good at keeping secrets. At the time that Sanger and Cartwright were talking, more than 790,000 people in government had top-secret security clearance, according to the prosecutors. Overclassification was the government’s contagion of choice. In 2016, a House committee reported that the government had spent more than $100 billion over a 10-year period on classification activities. The net result of the bill being handed to taxpayers? An estimated 50 to 90 percent of classified material was not properly labeled. A little-heard-from (thankfully) federal agency called the Information Security Oversight Office issued a report disclosing that there were 92 million decisions made to classify information in 2011 alone. The truth is that the drunken, profligate use of classification was undermining secrecy and making the nation less secure. That was hardly a big or new revelation. Supreme Court Justice Potter Stewart had made the point four decades earlier in the Pentagon Papers case:
I should suppose that moral, political, and practical considerations would dictate that a very first principle of that wisdom would be an insistence upon avoiding secrecy for its own sake. For when everything is classified, then nothing is classified, and the system becomes one to be disregarded by the cynical or the careless, and to be manipulated by those intent on self-protection or self-promotion. I should suppose, in short, that the hallmark of a truly effective internal security system would be the maximum possible disclosure, recognizing that secrecy can best be preserved only when credibility is truly maintained.
That message never got through to the Executive Branch.
If you want to understand how topsy-turvy the system of secrecy is, consider this: the intelligence and law enforcement agencies actually authorize the leaking of classified information to reporters at times. There is even a name for the practice: “save the secret.” If a reporter is already in possession of classified information, an agency will reveal further information, either to convince the reporter of the risk of publication or to give context to whatever was going to be published. It is all a little inverted—“to save secrets we have to disclose secrets”—but much about governmental secrecy is like that, part real, part illusion, overlooked when it serves the government’s purposes, rarely talked about honestly, at least publicly. In 2018, in a brief filed in a case called Johnson v. CIA, the CIA baldly argued that certain information remained classified even though the agency had officially provided it to three journalists to use as part of an effort to “protect intelligence sources and methods.” Never mind that the information was no longer secret, the court bought the CIA’s argument that the information had never been formally declassified and was therefore still classified.
As a lawyer, I wasn’t crazy about David’s letter. It might be read as an open door for prosecutors interested in finding out the details of his reporting. But it was hard to fault it for the larger point it was making about justice: Cartwright was no leaker, not even a whistleblower. In his compelling account of the recent history of cyber-combat, The Perfect Weapon: War, Sabotage and Fear in the Cyber Age, Sanger would later note that by the time he went to see Cartwright about the Olympic Games, he had already written two chapters about it. “My goal in seeing Cartwright was twofold: to check that I had the history and implications right, and to get an independent view of whether any details I was reporting could jeopardize national security,” Sanger wrote. It was, Sanger said in The Perfect Weapon, a mystery why the investigators decided to point a finger at Cartwright when so many others had already talked to him about the program before he made his way to the retired general. No one else was ever prosecuted. There was no indication that national security had been harmed by anything in the book or our newspaper stories. Yet, in the final days of the Obama administration, here was a distinguished military officer facing jail time.
We submitted the letter. When the prosecution filed its brief, the government revealed that it had rethought things and now believed Cartwright should get two years in prison, not six months. Sentencing was postponed to the early days of the Trump administration. On January 17, David wrote to me. There were 72 hours to go in the Obama presidency. Was a pardon still a possibility? I knew Cartwright’s lawyers had made the request of the White House, but I had heard nothing more. Then, a few hours later, the announcement came: Obama had decided to issue the pardon. Our reporters were later told by sources at the White House that The Times’s letter had made a difference. It highlighted Cartwright’s role in persuading The Times to withhold some particularly sensitive details. By doing so, it had cut through the prosecution’s mean-spirited account of Cartwright’s actions and put David’s interview with Cartwright into context.
Cartwright’s pardon was the coda to a perplexing eight years of dealing with leak investigations in the Obama administration. Many reporters and press organizations denounced Obama as an enemy of the free press because his administration had been unusually aggressive in going after leakers. (None of them apparently saw what lay ahead with the next administration. As one former member of the Obama cabinet said to me in year two of the Trump administration, “Miss us yet?”) It was not that simple to pigeonhole the Obama record. Some parts of it were deeply troubling. Under Obama, the administration had prosecuted nine government employees or contractors suspected of disclosing classified information to media outlets, according to data compiled by Gabe Rottman of the Committee to Protect Freedom of the Press. That compared to three in the prior 40 years.
For much of the past half-century, a balance had been struck. Both sides lived in an imperfect world of discretion (a better and dressed-up lawyer term for that “modicum of unlawfulness”). News organizations tried to make informed decisions about what to publish, weighing the risks to the nation and the benefits to the public, and the government held back from tracking down and prosecuting leakers except in the rarest of cases. So the reality on the ground was that if you were an employee toiling away in the government bureaucracy and felt the need to make The New York Times aware of some particularly bad move by your agency or boss, you could feel relatively sure that you would not have FBI agents at your door some night. And if you were the president or other high-ranking government official, you could be pretty certain that The Times was not going to publish something that jeopardized lives or endangered the nation’s security. And for all the outbursts of hysteria about leaks that came from the government side from time to time, few people outside government seriously doubted that the real problem for America was not the unauthorized revelation but an excess of secrecy.
Obama decided that there needed to be less discretion and more prosecution. Maybe the change was driven by the fear and realization that the purveyors of news were no longer just The New York Times and The Washington Post and the major TV networks but also rogue organizations like WikiLeaks that did not necessarily share traditional journalism’s ethical standards. WikiLeaks and even some established news organizations saw those of us in the mainstream as huge sellouts, timid, holding back when the government raised national security concerns, no matter how vague or amorphous. Snowden had specifically chosen to provide his leaked data to news organizations that were not going to engage in conversations with the government before publication—in other words, not The New York Times.
Whatever the thinking of the Obama administration, leakers were pursued. The number of prosecutions—the nine cases—may seem tiny in light of all the reporting on classified national security matters that is done week after week by The Times, The Washington Post, and other major news organizations, much of it fueled by leaks of classified information, but the numbers don’t tell the real story. The real story is that those sorts of prosecutions send a one-word message to thousands of others inside government who might be thinking about talking to reporters: Don’t.
For once, the Trump administration showed itself eager to emulate the Obama administration. By August 2018, the Department of Justice had brought charges in four national security leak cases involving the media, including the Reality Winner case. (By then, she had pleaded guilty and received a five-year sentence.) The other cases involved a Senate aide, a former FBI agent, and a onetime CIA employee.
There was another side to the Obama approach, though, and most of us in the media were hesitant to say much about it. The Department of Justice had largely refrained from serving subpoenas on reporters intended to force them to identify sources. Two of the major leak prosecutions started under Obama had involved The Times: the Cartwright case and the prosecution of John Kiriakou, a former CIA agent who also pleaded guilty. In neither case did government investigators ever contact me or anyone else at The Times. The same was true for other investigations that did not lead to prosecutions. There was no showdown with The Times over a reporter’s refusal to reveal a source as there had been in 2005 when Times reporter Judith Miller went to jail for 12 weeks. The government had grown much better at tracking down leakers without having to come after journalists to provide evidence. The targets’ emails, cell phone records, credit card receipts—they became the building blocks for prosecutions. The FBI broke the Cartwright case by subpoenaing his Gmail records from Google and confronting him with contradictions in his earlier statements to agents.
No one in my business could complain about being left alone. Subpoena cases are bruising for news organizations. Federal law provides very little protection to journalists who refuse to name names when subpoenaed. And reporters are the most obvious witnesses to have knowledge of who leaked information. If they refuse to testify, they are not charged with a crime but are held in contempt, allowing the court to send them to jail as a way to pressure them to change their minds. So we end up litigating those cases with little more than an airy hope that something will go right for us as the proceedings grind on, dragging our feet whenever and however we can. Maybe the prosecutors will drop the case. Maybe sources will decide on their own to acknowledge their role. Maybe a plea deal will get struck. Still, even when the prosecutors left our journalists alone, journalists and their lawyers could never feel good about the prosecutions. They inflicted costs on people who helped us, and every one of the investigations made it less likely that some government worker in the future, confronted with wrongdoing or incompetence or misguided policies, was going to be brave enough to talk to a journalist.
While the feds largely let reporters be, there was one huge and disturbing exception: Jim Risen, a Times reporter who had written a book that laid out the absolute bungling of U.S. intelligence agents as they schemed to undermine Iran’s nuclear program. Jim had originally been subpoenaed under the Bush administration, but Jim refused to cooperate, the case lingered, and Obama came into office. The Department of Justice was able to bring an indictment against Jeffrey Sterling, a former CIA agent, charging him with espionage for purportedly leaking information about the failed Iranian operation. The government did not stand down with the arrival of Obama’s team at Justice. They continued to press Risen for his source for the chapter in his book. He continued to say no. After years of proceedings, the case went to the Fourth Circuit Court of Appeals. The court’s decision could not have been worse for the news media. With one dissenting vote, the court held that reporters had no right to refuse criminal subpoenas unless the government was acting in bad faith. Risen had not met that standard, the court ruled.
Risen still refused to testify. The prosecutors finally gave up on him, put together their case, and convicted Sterling without Risen’s testimony. It seemed like particularly bad legal theater. For years, the DOJ had been saying that Risen’s testimony was necessary to get a conviction, and that was simply untrue. The prosecutors had made Risen’s life miserable, forcing him to live under the continuous threat of going to jail to protect a source. Along the way, they managed to get an appeals court to issue a decision that undermined the public’s right to know. And only at that point, after doing damage, did they walk away from the subpoena. It had all been unnecessary.
Two other ugly incidents also scarred the Obama legacy. In 2013, the DOJ disclosed that it had seized reporters’ records in two leak investigations. In the first, FBI agents had secretly obtained the phone company records of reporters for the Associated Press. In the second, FBI agents had obtained the emails and phone records of a Fox News reporter. In the affidavit filed by the FBI to obtain a court order for the email search, an agent had characterized the Fox reporter as engaging in criminal activity by seeking classified information from his government source—in other words, the most routine act of journalism, asking a source for information, was being treated as a crime. The press screamed—in fact, screamed loudly enough for the president to hear. Nothing cuts through the Washington political fog like having both Fox News and the legacy news media jumping up and down in an unhappy frenzy together.
A few weeks after the AP and Fox disclosures, I joined a group of representatives from major news organizations for a meeting in Washington with Eric Holder, the attorney general. The president had directed him to work with the news organizations to come up with policies that would balance the press interests in protecting sources and the needs of law enforcement. Decades earlier, the DOJ had set down “news media guidelines” that prosecutors were to follow before serving a subpoena on a reporter, whether the government was looking for a leaker or simply trying to use reporters as witnesses for other criminal proceedings. The guidelines, which made subpoenas on reporters a last resort to be used only when other investigative means had failed, worked, by and large, although, as the AP and Fox discovered, the rules had gaps.
In truth, federal subpoenas were uncommon for The Times. In the decade-plus since the Miller case, no Times journalist had received a federal subpoena seeking a source. (Risen’s subpoena had arisen from his book, not from his reporting for The Times.) More typical were subpoenas that sought better copies of photos or videos we had already published. A few years ago, Times reporter Walt Bogdanich had done an investigative story on how civil servants claimed to be disabled at retirement to feather their own nests. We posted videos online showing some of the retirees out enjoying a long day of free golf (one of the perks of being a disabled retiree at public courses on Long Island). The federal prosecutors subpoenaed us for better-quality copies of what we had put on our website, all the better to convict the retiree/scamsters with. We had no legal objection to giving them what we had already voluntarily made public. The defense lawyers, however, for reasons that were never clear, decided to seek all the outtakes—apparently believing they would help their case by having even more footage of happy-go-lucky golf outings by their fake-disabled clients. Before the judge, the prosecutors could not contain themselves, making like ACLU lawyers on the topic of press freedom as they joined our objection to turning over outtakes and let the court know just how wounded the First Amendment would be if we were compelled to turn over unaired footage of fake-disabled people playing golf. It was quite a performance. And it worked. I was not going to complain about the whiff of hypocrisy.
After the Fox-AP incidents, the DOJ came up with stronger guidelines, and it also started holding regular meetings with representatives of the press to discuss the issues of leaks and protection of sources. With the arrival of Jeff Sessions, safe to say, the DOJ was decidedly less enthusiastic about sitting down with the media to discuss how to minimize press subpoenas. As if to accentuate the obvious, the Department of Justice served its first subpoena on a reporter three weeks into the Trump presidency, demanding that a radio reporter in Oregon testify about his interview with one of the ranchers involved in the armed takeover at the Malheur National Wildlife Refuge. It was no leak investigation. It was instead a bare-knuckled attempt to commandeer reporters into being agents of the prosecution, helping make the case against a newsmaker who was interviewed. A judge ultimately quashed the subpoena, but the message was sent to the press—and to those who might now want to think twice about agreeing to interviews.
Soon enough, Sessions had gone public with his intentions to change the department’s subpoena guidelines. The details were sketchy, the direction was not: he intended to roll back the protections. Picking up on one of his boss’s favorite themes, he was gleeful to point out that the department had tripled the number of active leak investigations. Sessions would later tell Congress 27 leak investigations were in progress, although it seemed unlikely that all or even most of them involved leaks to the media. Sessions drew the line on giving reporters a pass in his new leak-investigations-on-steroids program. “We must balance the press’ role with protecting our national security and the lives of those who serve in the intelligence community, the armed forces, and all law-abiding Americans,” he said. It was all about a “culture of leaking” in his mind—that would be the culture that was threatening to provide a few truths to all those law-abiding Americans. “When few investigations take place, criminal leaks may occur more often, and a culture of leaking can take hold. So today, I have this message for our friends in the intelligence community. The Department of Justice is open for business, and I have this warning for would-be leakers: Don’t do it.”
Surprisingly absent—or maybe it wasn’t so surprising—was any acknowledgment that most of the high-profile leaking in the early days of the Trump presidency posed no threat to national security but instead involved the investigation into the ties between the Trump campaign and the Russians or the foreign policy missteps of the new administration. Going forward, critical reporting was going to be done under a cloud. Even though the DOJ did not move ahead with its plan to weaken the rules limiting subpoenas on news organizations, the possibilities of a crackdown on leaks and subpoenas for reporters could never be far from our minds.
The zeal of President Trump to use the DOJ to pursue government insiders who went to the press was dramatically underscored in September 2018 when The Times published an op-ed from a senior government official who signed the piece “Anonymous.” The article laid out how there was a “resistance” inside the administration, a group of officials quietly working to deter the president from taking actions that undermined U.S. interests or the rule of law.
Shortly before the op-ed was published, James Dao, the editor of the op-ed section, called me out of the blue. He let me in on the secret that we had received the piece, and he wanted to know whether I saw any legal problems. I was sure the article was going to be provocative but nothing struck me as a legal concern. Our news columns had been filled with insider accounts, as had a series of books about the Trump White House, all detailing the chaos and backstabbing inside. Interesting to now have someone do it firsthand through our opinion pages, but nothing groundbreaking. Jim and I talked again the next day, and we were confident that we had taken the necessary steps to make sure the official’s identity was protected. As Jim would later write in a piece for The Times, the op-ed had come about when an intermediary for Anonymous had reached out to the paper to see if there was an interest in publishing it.
“Should I tell you who it is?” Jim asked at one point in our first call. I didn’t want to know. Well, as a reader and a citizen and a generally curious person, I really, really wanted to know. But as a lawyer I prefer to work on a need-to-know basis when it comes to confidential sources. Typically, it is enough for me to know in general terms the source’s position and how the source could be in a place to witness what we were about to report, but I think we’re better off limiting who inside The Times knows the identity to an absolute minimum. It reduces the risk of inadvertent disclosures and gives sources greater confidence that their identities will be protected. Still, there are times when I come to learn the identities. Reporters volunteer the name to me sometimes, or I need to know because it helps me assess whether we should be concerned about a libel claim and our ability to defend against a future lawsuit. It doesn’t always go the way you would think. Once, as the editors and I were working through an unusually hard-hitting story about the illegal activities of a businessman, I expressed grave doubts whether any unnamed source could confirm the details we were about to put in the paper. He’s one of the sources, I was told, the businessman himself.
Dao would later say he was surprised by the overwhelming reaction to the piece by Anonymous. So was I. Caught up in a flurry of other business, I had pretty much forgotten that the op-ed was in the works until a friend’s email popped up on that Wednesday afternoon with the subject line “Wow. What an Op-Ed.” I clicked over to the home page to read the piece for the first time. Within 24 hours, 10 million other readers had done the same thing. When Dao agreed to take questions about the op-ed for a Times feature, more than 23,000 people queried him.
Trump went ballistic, blasting The Times and the writer and calling the piece an act of treason. Before the week was out he had asked the Justice Department to find out who Anonymous was. It seemed beyond preposterous. No classified information was even hinted at in the op-ed. Nothing illegal was remotely suggested. An official disagreed with the president and chose to use The Times to make the criticism public. It happened every day in every administration. The context was dramatic—an unsigned op-ed—but it was business as usual in a democracy.
Still, this was a new era in Washington, and the president had been hammering away at Attorney General Sessions for months for failing to do the White House’s bidding. Our top editors and executives wanted to know in real time whether the law would protect the paper’s right to keep the identity secret. I was pinned down with an emergency overseas, so my two young colleagues, Al-Amyn Sumar (in his first week on the job) and Christina Koningisor (on her last day), dropped everything to crank out a memo over the course of 90 minutes laying out various legal theories. They did a brilliant job. Of course, no one could answer the question of whether the government was going to care about the law and abide by it.
In the midst of that morning, Dao showed up in Legal. We retreated to a conference room. He had come to tell me that he wanted me to hold on to papers from the publication of the piece. He held up an unsealed envelope. With the story of Anonymous exploding around me, the temptation was enormous, but I hesitated. I knew my own rules, and I knew myself. I asked him to seal the envelope. I sat saying nothing as he licked the flap, sealed it, and signed it before he handed the envelope over to me.
Leak investigations can take strange turns. From time to time, I would be contacted by attorneys looking for our reporters to do something to help quietly clear their client who was caught up in a leak investigation. They made it sound simple: tell prosecutors that their client had not been a source. But it wasn’t that simple. For one thing, we knew that by telling the prosecutors that any particular person was not the source, we were increasing the likelihood that a case could be made against someone else. Only so many suspects are targeted in any investigation. It also made our reporter look like a willing witness for further questions from investigators.
More awkward was when the attorneys showed up on behalf of a client who had assured the lawyers that it was all a misunderstanding—he was no leaker. I once had a long, difficult meeting with attorneys for the target of an investigation who wanted our reporter to confirm that no classified information had passed during the reporter’s interview with the guy now caught in the investigators’ crosshairs. The reporter couldn’t do that. It would have been a lie. I tried to figure out why the lawyers were even asking. It may have been that at a time when overclassification is rampant, the source didn’t realize what was secret or what was not as he spoke to the journalist. Or maybe he just didn’t recall the interview clearly. The reporter had been taking notes; he hadn’t. Or maybe he wasn’t being honest with his attorneys and thought we would help him out. Who knows? In another case, a source who was under investigation came forward looking for us to help show that his interview had been authorized by his agency as part of a “save the secret” session. The reporter had every reason to believe that the interview was no leak but an authorized disclosure designed to get certain information about governmental surveillance out to the public. I worked with the source’s lawyer through the awkward business of trying to get language into a letter that would help his client but not open our reporter up to being a witness if the prosecutors wanted to question him. We finally got to language that worked for both of us. I never learned whether the letter made a difference.
As sure as I was that leaks, in the end, made America stronger, there was a troubling new development that made the whole topic more complicated. Once upon time, unauthorized disclosures meant a guy like Daniel Ellsberg, a government contractor concerned about the lies being told to the American people by their government, standing at a copy machine making copies of the Pentagon Papers. Now there was hacking—which shared little in common with the leak of information by someone inside the walls of government but tended to get rolled into the same conversation. Hostile foreign governments launched cyberattacks to steal email accounts and then released them through intermediaries, knowing the press would not be able to resist publishing. The North Koreans hacked Sony in 2014, unhappy about a silly movie that Sony was making about that funniest of topics: North Korea. The spoof had the CIA hiring two reporters to assassinate Kim Jong-un after an interview. The stolen emails showed the insidious games played by Hollywood insiders but little more. Sony’s outside lawyers wrote letters threatening lawsuits against any publisher who used the emails. Even they must have known it was an empty threat. U.S. law allowed news organizations to publish the emails if they chose, just as we were legally free to publish the pages from Trump’s tax returns. Still, being a tool of the North Korean security apparatus felt wrong. Our editors resolved that we shouldn’t break any stories. If accounts based on emails became public elsewhere, nothing was to be gained by standing down, and we could follow up with our own stories, but we didn’t want to lead the parade for Kim Jong-un.
Then came the hacks of the Democrats’ email systems during the 2016 election by the Russians. WikiLeaks ended up with a set of the documents and pushed them out. The hacking wasn’t all that different from that of Sony. A foreign power hostile to the United States was attacking nongovernmental systems. However uneasy that made editors feel, the documents were too important to ignore. They shed light on the biggest story of the year, the presidential election. Besides, the press is not a monolith. There is no collective decision-making. If there were, maybe more judicious use of the documents would have been made. But competition drove publishers, and voters undoubtedly learned valuable information. Yet anyone thinking beyond the next big story couldn’t help but wonder whether hacker-aided journalism was doing damage to America.
But that issue was not getting much air time. The narrative about the harm from leaks had been hijacked by Trump and General Thomas with their implausible tale of how The Times had published secrets that allowed the leader of ISIS to escape. Thomas had given his account of that at a forum in Aspen. For the general, it soon became a “people who live in glass houses” moment. During his appearance at the forum, he was also asked about a Washington Post story that was based on confidential sources and reported that President Trump had decided to cease CIA funding of the rebels fighting against the Syrian government, a move that would surely please the Russians as Syria’s allies. Thomas rushed in with an insider account. “From at least what I know about that program and the decision to end it, [it was] absolutely not a sop to the Russians,” he said. “It was I think based on an assessment of the nature of the program, what we’re trying to accomplish, the viability of it going forward, and it was a tough, tough decision.”
It was not just a tough, tough decision by the president. It was a top-secret tough, tough decision. No one in the government was authorized to talk publicly about the funding or its cessation. Maybe Jeff Sessions should have opened one more leak investigation, declared the Aspen Institute a crime scene, and put up yellow tape around the meeting hall.