The Trump administration’s campaign to hunt down and prosecute leakers is aimed at sending a chill down the spine of anyone considering handing classified information to the media, but it could also trigger a sense of déjà vu.
Nearly every administration since President Richard Nixon has launched some drive to clamp down on leaks, and most of those efforts found little success.
“We’ve historically had a monotonous routine of these epicycles of handwringing, blame, and then return to normal,” said David Pozen, a Columbia law professor who conducted an in-depth review of the leak phenomenon. “Every time we’ve gotten a new administration they come in and get upset anew about the inability to control every disclosure. Then they learn there’s not much they can do about it at a reasonable cost, and they learn to play the game.”
President Donald Trump remains deeply skeptical about the Justice Department’s efforts to crack down on leaks and blames Attorney General Jeff Sessions for the lack of action. The pressure only increased Thursday with the publication by the Washington Post of classified transcripts of two of Trump’s early calls with foreign leaders.
“I’m very disappointed in the fact that the Justice Department has not gone after the leakers. And they’re the ones that have the great power to go after the leakers, you understand…and I’m very disappointed in Jeff Sessions,” Trump told the Wall Street Journal last week, according to a transcript of the interview obtained by POLITICO.
“They should go after the leakers in intelligence. I don’t mean the White House stuff where they’re fighting over who loves me the most, OK?” he told the Journal. “It’s just stupid people doing that.”
Sessions has scheduled a press conference Friday to talk about DOJ’s work against leaks, but precise details of what Justice is planning remain unclear. Aides to Sessions say he plans to discuss statistics showing a "dramatic increase" in leak investigations compared with a year ago.
But there’s a long history of attempts to curb leaks that didn’t put much of a dent in the practice. Agents tend to be unenthusiastic about them because they’re often inconclusive — and because chasing spies and criminals seems more exciting than going after reporters and their sources.
“They’re not fun investigations to be on,” said former Justice Department Inspector General Michael Bromwich. “They’re notoriously difficult to solve, and they soak up so many resources.”
Before Trump, Nixon was likely the president most obsessed with leaks, even setting up a White House “plumbers” unit aimed at finding the culprits. The administration filed the first serious criminal leak case in the modern era, against researchers Daniel Ellsberg and Anthony Russo.
But Nixon’s frantic preoccupation with leaks wound up torpedoing the prosecution. After it was revealed that the White House plumbers broke into Ellsberg’s psychiatrist’s office, the judge declared a mistrial and threw out the case.
Responding to surveillance concerns flowing from Watergate revelations, President Jimmy Carter limited the circumstances under which leaks could be pursued.
But the anti-leak drive fired up again soon after President Ronald Reagan took office. He and his aides grew exasperated by press reports disclosing the dispatching of planes to Egypt and an aircraft carrier to the Libyan coast.
Reagan declared the issue “a problem of major proportions within the U.S. government [that] must not be allowed to continue.” Attorney General Ed Meese even said reporters publishing leaked information were “equally guilty” as the leakers, though he said he doubted the Justice Department would resort to wiretapping reporters.
A Reagan-era interagency task force, led by Deputy Assistant Attorney General Richard Willard, recommended broadening the use of lie detectors for those with access to classified information, but State Department officials and others bristled at the proposal.
“That ended up having to be pulled back as a result of complaints from Congress,” Willard said in an interview this week.
“Most of these things don’t amount to much of anything,” said Britt Snider, a former Pentagon lawyer who served on the panel. "I gave the powers that be a 10-point plan to stop leaks. They didn’t want to do any of them.”
Snider said he advanced a proposal that officials should have to speak on the record, with only agency heads or their deputies permitted to speak to reporters off the record or on background.
The suggestion wasn’t implemented and lingered for three decades before being dusted off by Sen. Dianne Feinstein (D-Calif.) as part of intelligence legislation in 2012. Sen. Ron Wyden (D-Ore.) got it stripped out, arguing that it would have “led to a less-informed debate on national security issues.”
The Reagan era did produce one piece of leak legislation: a bill aimed at preventing disclosure of the names of intelligence officers. It passed over vocal objections from Democrats like Sen. Joe Biden of Delaware, who said it could be used against the press. Only two people have been convicted under the statute. Both worked for the CIA.
Concern about leaks grew again under President Bill Clinton, as a series of diplomatic exchanges and arms control secrets were regularly disclosed to one reporter: Bill Gertz of the Washington Times. Clinton administration officials launched investigations with no sign of success.
The lack of progress helped spur legislation that would have made it a felony to disclose any classified information without permission. But Clinton unexpectedly vetoed the measure a few days before the 2000 election, citing the possibility the law could stifle criticism by former officials.
Leaks about surveillance after the Sept. 11, 2001, attacks preoccupied President George W. Bush’s administration, especially the New York Times’ disclosure in 2005 of the so-called warrantless wiretapping program.
“Our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk,” Bush said.
Fury about that leak led not only to an investigation, but to policy changes. In 2006, Director of National Intelligence Michael Hayden ordered that every leak reported to the Justice Department also be reported to his office, according to previously unpublished directives obtained by POLITICO under the Freedom of Information Act.
“Unauthorized disclosures and leaks to the media of classified intelligence information, specifically regarding sources and methods, is a major problem for the intelligence community,” Hayden wrote.
The probe of the warrantless wiretap leak led to search warrants being executed in 2007 at the homes of several suspects, but by the time Bush left office in 2009, no charges had been filed.
The most prominent leak-related prosecution in the Bush era was the indictment and conviction of Vice President Dick Cheney’s chief of staff, Scooter Libby, for lying in an investigation into the leak of the identity of CIA operative Valerie Plame. Bush waived Libby’s two-and-a-half year jail sentence but left his convictions in place.
Ironically, while Trump aides finger appointees of President Barack Obama for recent leaks, Obama’s team mounted a more assertive anti-leak campaign than its predecessors. It triggered a backlash from the media and — at one point — the GOP-led Congress.
“I think we are a little different in what we were able to do, judging by the number of successful prosecutions," said Bob Litt, general counsel to the Director of National Intelligence under Obama. "We pushed them. We indicated we really wanted them, and we did get high-level buy-in at the Justice Department."
Between 2009 and 2016, prosecutors filed nine Espionage Act cases involving leaks or suspected leaks — triple the number under all previous presidents.
Still, some of the biggest leaks in history came on Obama’s watch.
Army Pvt. Bradley (Chelsea) Manning leaked hundreds of thousands of diplomatic cables and military reports to WikiLeaks, and National Security Agency contractor Edward Snowden’s disclosure of details of the inner workings of a slew of highly classified U.S. government programs upended the world of surveillance.
The flurry of prosecutions alarmed First Amendment and whistleblower advocates, who have long complained that the Espionage Act is an overly blunt tool to pursue leakers. But what really landed Obama’s team in hot water were invasive tactics used to ferret out reporters’ sources.
Prosecutors investigating leaks obtained mobile, home and office phone records for a slew of Associated Press reporters. In addition, the Justice Department branded Fox News reporter James Rosen as a co-conspirator in a search warrant affidavit.
The tactics drew complaints not only from journalists but from Republican members of Congress. Attorney General Eric Holder launched a review of Justice’s policy for subpoenaing journalists and their records, leading to changes that made approvals harder to obtain.
Any effort by the Trump administration to roll back those changes would trigger a robust response from journalists and free press advocates, former Washington Post executive editor Len Downie said this week.
“An obvious red line for those of us in the media is anything that inhibits newsgathering and criminalizes newsgathering, as well as subpoenaing of reporters and their records when it’s not necessary,” Downie said. “You can imagine a whole panoply of things the government might do.”