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The difference between illegal leaks and inconvenient leaks

The Justice Department promised on Friday a crackdown on leaks of classified government information to the press, with Attorney General Jeff Sessions vowing to triple the number of probes into leaks. Hari Sreenivasan speaks with Jeffrey Smith, former general counsel for the CIA, and The New York Times' James Risen about what constitutes a problematic leak and why they occur.

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    Now to a problem that knows no party and has caused pain in every modern American presidency. We are talking about unauthorized leaks to the press.

    The Obama administration brought more leak-related charges than all other presidencies combined. As we heard, today, Attorney General Jeff Sessions vowed to triple the number of investigations.

    It follows the rare disclosure this week of the full transcripts of President Trump's early calls with world leaders.

    Hari Sreenivasan has a look at the debate over freedom of information and national security concerns.


    For that, we are joined by James Risen, investigative reporter for The New York Times and author of the book "Pay Any Price: Greed, Power and Endless War." He fought a protracted legal battle that spanned two administrations over whether he could be forced to identify his confidential sources. And Jeffrey Smith, he served as general counsel of the CIA in the Clinton administration. He is currently a lawyer in private practice.

    James, let me start with you.

    Your reaction to what Jeff Sessions at the Department of Justice said this morning?

  • JAMES RISEN, The New York Times:

    I think it was — they didn't have much in the way of specifics. There were no specific cases that they announced that they were bringing against either reporters or whistle-blowers.

    And I think that their press conference was mainly in reaction to Donald Trump's continued pressure on Sessions and on Dan Coats, the — and the intelligence community to get tough on leaks. But they lacked any real policy depth to what they were saying. They just talked about how they were going to get tough.

    And so it sounded a lot like what previous administrations, both the Bush and the Obama administrations, have said. And it really is — we're going to have to wait and see whether they really have specific cases that they plan to bring or not.

    They talked about how they have tripled the number of investigations, but that really leaves a lot to — a lot of questions, because the intelligence community, for years, has made many, many referrals to the Justice Department that never get prosecuted. And so the fact that they have more referrals doesn't really mean that we're going to see more criminal cases.


    Jeffrey Smith, is this any different than what every administration tries to do when they come in?

  • JEFFREY SMITH, Former CIA General Counsel:

    No, I don't think so.

    Leaks are a real problem. They can cause real harm, but I think one has to distinguish between leaks of information that is genuinely classified and truly does cause harm and leaks of information that people regard as sensitive, but is more political in nature.

    So it's important to concentrate on those leaks that really do cause harm to national security, and not just on those that are inconvenient for leadership.


    James Risen, given that sort of definition that Jeffrey Smith gave us of what constitutes a leak and what doesn't, should The Washington Post have published the transcripts of the president's conversations with the Mexican president and the Australian leader?


    Well, in my opinion, yes. I think it's in the real public interest, because it showed — for one thing, it showed what Donald Trump really thinks of his wall idea and how political of an issue it was for him.

    I think Jeff is absolutely right that there is a distinction between national security reporting and political reporting. And I think Donald Trump is going to be very disappointed, because the kind of leaks that he rages about are just what Jeff just described as political in nature. And they don't really fall under the kind of cases that can be prosecuted in any meaningful way.


    James, staying with you for a second, given that there was a substantive difference that we all learned about in terms of President Trump's policy from that transcript, given that, should there be an expectation a president has that he can have a conversation with another world leader and it be private?

    Doesn't it change the equation? Every president that's going to call or every leader that's going to have a conversation with President Trump might speak differently to him knowing now that those conversations might be published in The Washington Post the next day.


    Well, you know, that wasn't even the first phone call that was published. The Intercept published one between Trump and Duterte, the leader of the Philippines, a few weeks ago.

    I think if you — you have to understand the context in which leaks happen. Leaks happen when people are unhappy with the government.


    Jeffrey Smith, according to even to your own definition, would the publishing of those transcripts by The Washington Post, would that constitute a leak? Should it be prosecuted?


    Yes, I think it could.

    Undoubtedly, those transcripts were classified. I don't know what level. But I spent many years in the Department of State. And conversations between heads of state or secretaries of state and foreign ministers are extraordinarily sensitive.

    And the leak of that will undoubtedly chill any future conversations between the president and others, because they will wonder whether or not what they said to him can remain confidential. So, yes, it will cause harm.


    A lot of these cases, you have got to remember there's sides to conversations. Some of these may be coming out from foreign governments who don't like Trump.

    I think you have to remember the reason there's been this cascade of leaks about Donald Trump is because he's gone out of his way to insult and ridicule virtually everyone that he deals with.


    Jim, I'm not disagreeing at all with you on why they occur.

    I'm just saying that, in the particular case of heads of state conversations, damage to U.S. relations with that country and other countries will occur.


    I'm saying that those leaks may have happened from the other government wanting to get it out.


    That is certainly possible.


    Jeffrey Smith, I just want to ask you, also, how do we balance out the needs for national security with the needs of an informed public?

    You know, the Reporters Committee for Freedom of the Press said today: "What the attorney general is suggesting is a dangerous threat to the American people to know and understand what their leaders are doing and why."


    It is always a delicate balance. And there is no perfect answer here.

    One thing I do want to comment on is the previous administration had come up with guidelines for the subpoenaing of reporters. And I think those guidelines strike the right balance, and I hope that the new administration will not change them.

    That said, it is important that we do protect things that truly are harmful. And my impression is, over the years, that most news organizations check with the executive branch before they publish. And the executive branch has the obligation to try to tell them why harm would occur, but leave it in the journalistic judgment of the news media to decide what to do.

    Unfortunately, in my view, they publish more than they should, but striking this balance is difficult.


    All right, Jeffrey Smith, James Risen, thank you both.



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