I have in my career as a prosecutor and then as a defense lawyer firmly believed that leaks (whether by government personnel or others) are not the answer. I may have led a government superior into believing I would do something like that, but I always knew that, at the end of the day, leaking information would be a mistake.
Case in point: nearly forty years ago, the chief prosecutor and I, a line assistant, were investigating an FBI agent for bribe-related perjury. The statute of limitations was about to expire. No sitting FBI agent had, until then, ever been indicted. The FBI, up and down the chain of command, was unhappy, even angry (at us, not its agent) because one of its own might face indictment. Indeed, the brand new FBI Director, Judge William Webster, a tower of the judiciary and later, of law enforcement, literally told us: “Lots of luck. All bad!” Surely a chauvinistic approach.
The case had many drawbacks and, as if they weren’t enough, a critical witness gave an importantly different version of events to the grand jury. We were demoralized; but I, rightly or wrongly, felt the case “had to” be brought. It was a matter of principle, although decades of experience later, perhaps I was overly influenced by our yearlong investment in the case.
The boss, a gifted prosecutor, had a far broader, more thoughtful and nuanced view. If we indicted and then lost the case, our relationship with the FBI would be over – and we sorely needed it to pursue our principal mission to prosecute organized crime. So he told me that we would “defer” the case, and use an arguably still-open statute of limitations later. But we both knew the case would be over, never to be reopened.
I was really angry. Being young enough to believe that I was the “last honest man,” I banged on his desk, stormed out of his office cursing, and perhaps even muttered under my breath something like “he shouldn’t get away with this; people should know.” My chief knew I was friendly with some reporters, and maybe, just a little, I wanted him to think that I might meet with one of them that night on a fog drenched Brooklyn Bridge to describe what had occurred. (I knew I never would have done it, but did he?)
An hour later, my chief told me to call in the grand jury: We would go forward! Was it his fear that I would leak a story; his fervent belief that justice should be done no matter the consequences; some combination? I’ll never know, he’s gone now, and I certainly did not ask “why” at the time. We ended up on the side of right: The agent pleaded guilty and was sentenced to jail. There was no backlash and our Office went on to bring critically important cases (including the chief’s convictions of five members of Congress) based largely on the FBI’s important investigative work, and Director Webster’s belief in our Office’s ability to get the job done. Justice prevailed! But was it no harm, no foul?
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FBI Director Comey’s curious actions in initially clearing and then reopening the investigation of Hillary Clinton have been the subject of considerable controversy and speculation that many FBI agents were deeply troubled by his refusal to go forward. Some reports strongly speculated that his description of Secretary Clinton’s conduct, which hardly praised her handling of the email situation – and which candidate Trump promptly seized on – resulted directly from his fear that FBI insiders would simply leak that he had gone soft on Clinton for political reasons, having chosen sides against Trump. And if anyone doubts that Comey’s second run at the event – his letter to Congress reopening the email investigation just before the election – was not, at least in part, driven by a concern over a potential leak about his inaction had additional emails later surfaced in the public eye, they probably should rethink that.
Law enforcement leaking information to the press is hardly an empty fear. Recently, in the Billy Walters case – the sports gambler charged with insider trading – a supervisory FBI agent admitted to leaking information about a grand jury investigation, although we do not know his motivation. As it turns out, his (allegedly) wrongful conduct might be devastating to the government, Walters having now moved to dismiss his indictment for government misconduct. Leaks may have consequences.
And, now, we have the investigation by the FBI, CIA, etc., reported by The New York Times on Inauguration Day, of business dealings between Trump campaign advisors and Russian government agencies. Again, we don’t know the motivation of the those who spoke with the press – presumably law enforcement officials “off the record” – but, let’s face it, a new and obviously unpredictable Administration is in town.
For law enforcement, there will be a new Attorney General, nominated by President Trump. And whether Mr. Sessions is confirmed by the Senate and whether he agrees to recuse himself from investigations relating to the new President (as he has promised to do concerning Secretary Clinton), there is likely a deep and justifiable fear among law enforcement – as possibly with any new administration – that the “new broom”, to bastardize an old proverb, won’t “sweep clean” but rather will sweep the dirt under the rug.
No question, the Nation would be far better off if the Department of Justice always, in any administration, was in the hands of someone who all believed was a non-partisan, impartial Attorney General of unimpeachable integrity. But that is an ideal – fears have existed in the past that one or another Attorney General was partisan and political, and those fears remain in play for many today. But there was always some sort of balance – a pendulum if you will – that may have swayed 10 degrees one way or the other. And in that context, leakers, or would-be leakers, may have simply been worried that the government wouldn’t do or wasn’t doing its job properly. But if the line-law enforcement officers are concerned, there should be (and in some instances there is) an internal procedure in place – an ombudsman, if you will – to whom the would-be leaker could and should bring his concerns. But if that ombudsman does not take action . . .
When I began this article a week ago, I had no reason to believe that I would ever think differently about leaks. The end of the prior paragraph had been, “But if that ombudsman does not take action, leaks are simply not the answer.” But ten days into the Trump presidency makes me, for the first time, reevaluate my belief. Importantly, the Obama Administration was tough on leakers; however, we live, now, at the beginning of a new Administration that promises provocative and potentially Orwellian policies. There may be a rush by some to “tell the world” what lies in the future or is already in the pipeline, and given what has occurred just in the first 10 days of the Administration, some may reconsider, wondering if leaks are indeed the answer.
I admit I am torn. Maybe that pendulum has now swung too far. When it comes to issues of law enforcement – and certainly national security – there is an understandable and necessary tension between what the investigating agent knows or considers it best to do, and the broader picture which, in my case, my chief could see far better down the road than I. And because that “last honest man” – or someone who thinks he is – rarely has the full picture, should he really be the one to decide what’s in the public interest?
To revisit the “ombudsman” motif, maybe our ombudsman could consist of a representative group of diverse and thoughtful individuals -- so that the general public understands that the concerns of all parties are considered when that group decides whether the “right to know” is outweighed by other relevant factors. Then, one who nonetheless leaked would be prosecuted only if the ombudsman (gatekeeper) committee was bypassed by the would-be leaker, or the leaker’s request for the right to “go public” as it were, was denied by the committee and he proceeded anyway. Perhaps, with such a regimen in place, the public would be assured that, when it is denied consequential information, there is good and valid reason for it.
But. of course, there is an obvious and chilling downside to this idea: once a would-be leaker revealed himself to the committee, he is essentially bound by its decision. He will have identified himself and can be easily turned over to the Justice Department. So isn’t it safer to just leak the information, without leaving his “fingerprints” on the disclosure?
There are no easy answers here. And ten days in, the President, as provocateur-in-chief in carrying out campaign promises, may reach a critical mass very quickly in communicating to many well-intentioned public servants that they may want to go outside normal channels in trying to do “the right thing”.
It is time for a national conversation, with “We The People” weighing in on both sides of the divide!
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