Over the past weeks, a furor over “illegal leaks” has grown, reaching a new level of uproar when White House Communications Director Anthony Scaramucci declared that 150 years ago, leakers would have “been hung” for their “treasonous” actions. But as a legal matter, “leaking” information to the press is rarely a crime, and is never treason.
Scaramucci claims White House staffers disclosing details to the press are “gonna get prosecuted” with felony charges when “the lie detector starts.”
{mosads}It’s important to note that the First Amendment prohibits the government from making laws that restrain speech, including speech between so-called leakers and the press. So the default rule is that talking to the press is legal, not illegal. As a general matter, you can tell the press whatever you want.
Leaking classified information is a very important exception, however. The Espionage Act prohibits communicating information that you have “reason to believe could be used to the injury of the United States or to the advantage of any foreign nation.” It is also a crime to knowingly and willfully transmit classified information about certain intelligence activities.
In some cases, if the leaker took information from the federal government that he or she was not authorized to take and transmitted it without authorization, it could be prosecuted pursuant to a statute that criminalizes conveying a thing of value of the United States without authority. But it’s unclear whether courts would uphold a conviction on these grounds outside of very unusual circumstances.
Although leaks are rarely prosecuted as crimes, federal employees could “be subject to disciplinary action for leaks regardless of the nature of the information” although “they may claim some relief from the disciplinary action under the whistleblower protection provisions,” according to the Congressional Research Service. Obviously being disciplined by your employer is a far cry from going to prison, but it underscores that leaks, even if they are not criminal, may nonetheless be considered improper by the leaker’s employer.
Beyond Scaramucci’s assertion of criminal leaks, he’s also noted that “those are the types of leaks that are so treasonous.”
Even leaking that is criminal is usually not “treason” as a legal matter, because treason is very narrowly defined.
Article Three of the Constitution states that treason against the United States “shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.” So transmitting classified information to a foreign power is not treason if the United States is not at war with that nation.
It’s hard to see how leaking to the press could be treason even if it is a violation of the Espionage Act. The United States is not at war with the press — even if it seems like the president has been recently.
Although leaking has come under fire lately, at times anonymous sources have played an important role in American history. Mark Felt (“Deep Throat”) was a key source of information during the Watergate scandal, and Daniel Ellsberg famously leaked the Pentagon Papers. Federal employees who become whistleblowers like Felt and Ellsberg are now protected by federal law that provides relief from disciplinary action taken in retaliation for leaks to the press if the whistleblower reasonably believed that there was a violation of law or regulation, a serious abuse of power or a threat to public health or safety.
Both Felt and Ellsberg were federal employees when they spoke to the press. Felt was the second-highest ranking person at the FBI, and was shielded by reporters Bob Woodward and Carl Bernstein, who famously kept his identity secret for decades. Ellsberg was not anonymous and was in fact prosecuted for violations of the Espionage Act. He was also targeted by the “White House Plumbers” operation that later led to the Watergate scandal. Ultimately the charges against Ellsberg were dismissed after evidence of unlawful wiretapping of Ellsberg was uncovered.
That doesn’t mean that leaking is a good thing in all instances. But it is usually legal and for good reason — the framers of the Constitution and the Bill of Rights wanted to strictly limit the ability of government to prevent citizens from speaking or the press from reporting the news. It is worth keeping in mind the importance of the freedom of speech and a free press when we hear politicians criticize “leaking.”
Renato Mariotti is a former federal prosecutor in the Securities and Commodities Fraud Section of the United States Attorney’s Office in Chicago and he has prosecuted federal obstruction of justice cases. Follow him on Twitter @renato_mariotti.
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