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The Legal Landscape Of Leaks


One of the big reveals of James Comey's testimony this past week was that he leaked, through a friend, the contents of his own unclassified memos about his interactions with the president to The New York Times. And also this past week, we found out the name of another alleged leaker, government contractor Reality Winner. She's under indictment for violating the Espionage Act after allegedly leaking classified NSA documents concerning Russian interference in the 2016 election. She has pleaded not guilty.

I'm joined now by Mary-Rose Papandrea to talk about leaks. She's a law professor at UNC Chapel Hill and has written extensively about national security leaks and the press.


MARY-ROSE PAPANDREA: Thanks for having me.

GARCIA-NAVARRO: So let's start with the big news. Comey shared the contents of his memos with the press. Is that illegal?

PAPANDREA: It's probably not. It doesn't appear that he shared any classified information, and there's been an argument that perhaps he was revealing information that might be covered by an executive privilege. But even if that were true, it appears Trump has waived any such privilege by talking openly himself about his interactions with Comey.

GARCIA-NAVARRO: So it's unlikely that Comey would be prosecuted?

PAPANDREA: It is unlikely.

GARCIA-NAVARRO: This kind of leak, though, isn't what we typically think about when we think of national security leaks. You know, I think of Edward Snowden, Chelsea Manning and now Ms. Winner. How are those kinds of leaks different? And what are they usually charged with?

PAPANDREA: Sure. So there is no general law against revealing classified information or a general law against leaking. That is a term that's used broadly to refer to a whole range of things. But there are specific laws on the books that criminalize the sharing of information without authorization. One - there are various provisions of the Espionage Act, and it prohibits the sharing of information that's - or documents that are potentially damaging to the United States or useful to the enemy of the United States and sharing with someone not entitled to receive them. So that's very broad. It's not limited to agents of a foreign government. And there is no carve-out for sharing information to the press.

GARCIA-NAVARRO: And what happens to journalists who publish information that is classified, provided by leakers?

PAPANDREA: There has never been a prosecution of a member of the media. There - but it's not clear that the law would prohibit such a prosecution. So we're living in this time of benign indeterminacy, some people have called it, where it's really uncertain whether the First Amendment would permit the prosecution of the press for publishing classified information. But nevertheless, we have seen most administrations - all administrations refrain from actually prosecuting the press. They just tend to make a lot of noise about the press being traitorous, but they don't actually bring charges.

GARCIA-NAVARRO: You say there's never been prosecutions of journalists over leaks. What about Judith Miller? What about New York Times reporter James Risen, Fox News reporter James Rosen? I mean, Judith Miller spent time in prison.

PAPANDREA: Sure. I'm glad you mention that. So that is coming through subpoenas to the reporters to reveal the names of their sources. So it's not a direct prosecution of those reporters. But they are - you know, as you mentioned with Judith Miller, it can amount to jail time if the reporter refuses to testify.

GARCIA-NAVARRO: So what's happening is that they are being called to testify in the case against the leakers. And when they refuse to do so, they're in contempt of court, and they may face jail time.

PAPANDREA: That's exactly right. And that is much more acceptable. I should add that under Attorney General Holder - after the James Risen subpoena where James Risen was told he had to testify and refused, the U.S. government did not push him to testify. They obtained a conviction anyway, and Holder shortly thereafter announced that, under his watch, no reporter would go to jail for doing his job. It remains to be seen whether that same policy would be in place under the Sessions Department of Justice. Everything he's said indicates that he will not follow that policy.

GARCIA-NAVARRO: Meaning that he and the Trump administration may indeed prosecute journalists. We've heard Trump himself and other Republicans raising the possibility of prosecuting journalists. Do you think that there is - that that is a possibility?

PAPANDREA: Right. I think that there is a real possibility that they would subpoena journalists to testify about their sources if they felt it's necessary. Whether they would actually bring a criminal prosecution against the journalist, I think it's a possibility. But they don't necessarily have to go there to make life very difficult and unpleasant for reporters.

GARCIA-NAVARRO: All right, that's Mary-Rose Papandrea She's a law professor at UNC Chapel Hill. Thanks so much.

PAPANDREA: Oh, my pleasure.


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