When Does a Leak to the Media Violate the Law?

With would-be agency whistleblowers on edge and President Trump warning that news leaks are criminal acts, the Congressional Research Service on Feb. 22 sent Congress one of its “legal sidebars” reviewing past approaches to distinguishing between illegal and legal contact with the media.

The gist: numerous federal employees have been prosecuted for leaking classified material, but members of the news media less often.

CRS reviewed cases in which the Obama administration and predecessors prosecuted national security leakers. Among the names mentioned were CIA agents John Kiriakou and Jeffrey Sterling, National Security Agency analyst Thomas Drake, former Army soldier Chelsea Manning, still-at-large NSA contractor Edward Snowden, Naval intelligence employee Samuel Morison and famed Vietnam-era RAND Corp. analyst Daniel Ellsberg.

“The criminal laws at issue vary somewhat according to the circumstances in a given case,” CRS wrote in the memo released by Steven Aftergood, who directs the Project on Government Secrecy for the Federation of American Scientists.

Officers, employees and contractors may “be subject to disciplinary action for leaks regardless of the nature of the information,” CRS said. “However, they may claim some relief from disciplinary action under the whistleblower protection provisions. Few, if any, journalists have been prosecuted to date, but they may end up in jail for refusing to divulge their sources to a grand jury investigating a leak.”

The memo then detailed the statutory definitions of leak-related crimes, with penalties, citing Section 793 of the Espionage Act. Specifically:

• It is a federal crime, punishable by imprisonment for up to 10 years, to disclose national defense information to someone who is not entitled to receive it.
• It is a federal crime, punishable by imprisonment for up to 10 years, to steal U.S. governmental secrets.
• It is a federal crime, punishable by imprisonment for up to 10 years, to disclose classified information relating to U.S. or foreign communications intelligence activities.
• It is a federal crime, punishable by imprisonment for up to 10 years, to acquire information by means of computer access without authorization or in excess of authorization.
• It is a federal crime, punishable by imprisonment for up to 15 years, to disclose the identity of a covert government agent, directly or indirectly.
• It is a federal crime to lie or otherwise obstruct a federal criminal investigation. The maximum sentence for such offenses varies from 5 to 20 years.

“As long as the disclosure does not involve classified information or is not otherwise a crime,” CRS concluded, “federal employees are entitled to relief from any disciplinary action taken in retaliation for leaks to the press, which they reasonably believe evidence “(i) a violation of law, rule, or regulations, (ii) gross mismanagement, a gross [sic] of funds, [or] an abuse of authority, [ or (iii)] a substantial and specific danger to public health or safety.”