Leak Investigations, Journalists, and Double Standards By Andrew C. McCarthy
It is an interesting contrast.
The media are in a lather over the Justice Department’s grand-jury investigation of contacts between several reporters and a government source — the former Senate Intelligence Committee security director who has been indicted for lying to investigators about his leaks to the press.
The same media are in a lather over the refusal of the president of the United States, at least thus far, to submit to questioning by the special counsel in the Russia investigation. The president is placing himself “above the law,” they contend, if he rebuffs prosecutors or defies a grand-jury subpoena.
Whether we’re talking about journalists or presidents, the situation is the same: An investigative demand is made on people whose jobs are so important to the functioning of our self-governing republic that they are given some protection, but not absolute immunity, from the obligation to provide evidence to the grand jury.
And whether it’s a reporter or the chief executive, the question is: Under what circumstances should they be forced to testify?
The oddity — a very human oddity — is that the press is extraordinarily attuned to its own need for protection but scoffs at the notion that someone with greater responsibilities should have comparable protections.
James A. Wolfe, who was indicted on Thursday, is a textbook swamp creature. According to the New York Times, he is a former army intelligence analyst who 30 years ago latched on to the Senate Intelligence Committee as a staffer. A non-partisan staffer, of course. The Senate Intelligence Committee, a pillar of the Beltway establishment, is nothing if not self-congratulatory about its cross-the-aisle comity. It doesn’t do much, but rest assured that what little it does is awesomely bipartisan . . . except to the extent it is admirably non-partisan.
Wolfe eventually rose to the post of security director, responsible for receiving, maintaining and managing all classified intelligence shared with the committee by U.S. spy agencies (or is it informant agencies?). So, what’s a good, upstanding, bipartisan, non-partisan Washington bureaucrat to do in such a coveted slot? Why, selectively leak classified information to favored journalists, that’s what.
In the case of Wolfe, who is 57, these journos most prominently included Ali Watkins, a 26-year-old Times reporter with whom he was romantically involved for three years — mostly while she was working her way to the Gray Lady as a national-security reporter for the Huffington Post, Politico, McClatchy, and BuzzFeed. The indictment alleges that the couple exchanged “tens of thousands of electronic communications, often including daily texts and phone calls,” as well as “encrypted cell phone applications.”
Now, sit down because I know you’ll be shocked to hear this: Wolfe’s bipartisan, non-partisan intelligence leaks from the bipartisan, non-partisan Senate Intelligence Committee had a decidedly anti-Trump flavor.
For example, in spring 2017, Wolfe tipped Ms. Watkins that Russian spies had attempted to recruit Trump-campaign adviser Carter Page back in 2013. This leak did not occur in a vacuum. It had been revealed that the Obama Justice Department used the unverified Steele dossier, generated by the Clinton campaign, to obtain FISA-court surveillance warrants against Page. To control the damage, Democrats and other, uh, non-partisans wanted to claim that the FBI had reasons independent of the dossier to suspect that Page was a clandestine agent of Russia.
Wolfe obliged with the leak, enabling Watkins to write a BuzzFeed article provocatively headlined “A Former Trump Adviser Met with a Russian Spy” — although the story could just as easily have been entitled “A Former Trump Adviser Helped Justice Department Prosecute Russian Spies.” (Page voluntarily provided information that prosecutors used to arrest Moscow’s operatives.)
The indictment implies that Watkins’s story was based in part on top-secret intelligence provided to the committee by a U.S. intelligence agency on March 17. On that day, Wolfe and Watkins exchanged 82 texts, in addition to having a lengthy phone call. On April 3, the day the story was published, they exchanged 124 texts and spoke on the phone after Watkins appeared on national television to discuss her report.
Wolfe cultivated other journalists, too, using what the indictment calls “anonymizing messaging applications,” and arranging surreptitious meetings in restaurants, bars, private residences, and secluded areas of the Hart Senate Office Building. Wolfe gave one unidentified reporter a heads-up that the committee had subpoenaed Page, and he even provided that reporter with Page’s personal contact information. Later, after the reporter’s story was published, Wolfe extended congratulations: “Good job! . . . I’m glad you got the scoop.” The reporter responded with thanks, noting that Page was not “pleased” but did not deny being subpoenaed. Page complained to the committee about media leaks, to no avail.
While the committee posed as the embodiment of discretion, its security director was offering himself as a regular anonymous source. According to the indictment, Wolfe told one journalist he could play that role, provided that his name never be mentioned to the journalist’s colleagues. More touching was his text to Watkins, in December 2017, around the time their romance ended:
I’ve watched your career take off even before you ever had a career in journalism. . . . I always tried to give you as much information as I could and to do the right thing with it so you could get that scoop before anyone else. . . . I always enjoyed the way that you would pursue a story like nobody else was doing in my hallway. I felt like I was part of your excitement and was always very supportive of your career and the tenacity that you exhibited to chase down a good story.
Not quite “Shall I compare thee to a summer’s day,” but you get the point.
When interviewed by the FBI on December 15, Wolfe denied knowing Watkins’s sources until he was confronted with pictures showing the two of them together. He then conceded that he had lied and acknowledged having had a personal relationship with Watkins, but denied giving her non-public information or investigative leads. He flatly denied contacts with other reporters, though he had evidently been in regular contact with them.
Wolfe has been charged with three counts of lying to investigators.
These allegations appear airtight and, in the aggregate, carry a potential 15 years’ imprisonment. It is possible that classified-information offenses could be added to the indictment. On the other hand, the Justice Department may see wisdom in proceeding on the false-statements charges alone. That might enable prosecutors to avoid (a) publicizing the intelligence Wolfe allegedly disclosed and (b) sorting out what information was classified (and whether Wolfe knew it was classified).
In the course of the investigation, the Justice Department used subpoenas to obtain records from telecommunications companies pertaining to the journalists. It appears that investigators were cautious in their approach — for example, they acquired “metadata” records showing with whom and when Ms. Watkins was having email and phone contacts; but they did not seek the content of the communications. To the extent they seized message content, it appears to have been on Wolfe’s end — likely through government devices issued to him by the committee for official business.
Nevertheless, the specter of investigators rifling though journalists’ communication records causes the media consternation. It is thus worth observing that, contrary to popular belief, the press does not have a sweeping privilege insulating reporters from investigation or from being compelled to disclose information to the grand jury.
In its 1972 decision in Branzburg v. Hayes, the Supreme Court held that, if subpoenaed, journalists have a legal obligation to testify, and specifically to answer questions relevant to a criminal investigation. Reporters often promise their sources confidentiality, but it is not a legally enforceable promise; the reporters are betting on the reluctance of the government to challenge the arrangement.
There are virtually no rights and privileges that are absolute or without qualification.
It is a good bet. The Justice Department adheres to strict regulations against interfering in the First Amendment freedom of the press. The regs bar prosecutors from compelling journalists to surrender information unless there are reasonable grounds to believe (a) a serious crime has occurred, (b) the information sought from the journalist is essential to proving that crime, and (c) the journalist appears to be the only source from which the information can be obtained. And even if these conditions are satisfied, prosecutors are admonished that their subpoenas “should not be used to obtain peripheral, nonessential, cumulative, or speculative information.”
That is far more protection than the average person gets. It is, moreover, all to the good. For all our grousing about media bias, it is a fact that a democratic society cannot function, govern itself, and make salutary policy choices without a free press that investigates vigorously and reports fearlessly.
Nevertheless, there are virtually no rights and privileges that are absolute or without qualification. In over 99 percent of investigations, there is no thought to coercing, much less need to coerce, reporters into testifying. But there is the rare significant case in which a journalist is an essential witness to criminal misconduct, possesses life-and-death information, or may even be complicit in law-breaking. In those situations, and with a closely supervised Justice Department review process, it must be possible to demand information from journalists, just as it is demanded from every citizen.
That is the rare exception, though, not the rule. Demands on the media must be limited to those highly unusual instances in which prosecutors can meet this exacting burden.
Most responsible media advocates grasp this. The Times, for example, quotes Mark J. MacDougall, a lawyer for Ms. Watkins, who observes that whether it is “really necessary” for the Justice Department to obtain a journalist’s phone records “will depend on the nature of the investigation and the scope of any charges.” That’s reasonable — it’s not saying this must never be done, just that when it is done there better be a damn good explanation.
Still, it would be nice if the media grasped that they are not the only constitutionally recognized actors who rate some deference. At the moment, President Trump’s lawyers are fighting efforts by the special counsel to pressure him into an interview — perhaps even into testimony before a grand jury. Like journalists, the president has an extremely important job — most would say, the most important job — in our system. Like journalists, the president has a privilege of confidentiality — one that actually has been endorsed by the Supreme Court. And as is the case with the protections afforded journalists by Justice Department regulations and practice, the chief executive’s privilege is not absolute — it must give way when there is evidence of a serious crime, when the president is somehow implicated in that crime, and when the president possesses critical information that cannot be obtained from any other source.
Most commentators sympathetic to Trump’s position do not question whether a president should ever be subpoenaed (or asked to submit to prosecutorial questioning). The question is whether, before a subpoena is issued, the prosecutor should be required to establish that the president’s testimony is really necessary. Is there are crime Mr. Mueller is investigating as to which there is vital evidence that can be obtained only from the president?
Reporters clearly grasp the need for such solicitude when it comes to themselves.
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