District of Nebraska Senior Judge Richard G. Kopf, who presumably knows a secret or two, came out clearly against the current torrent of leaks from within the Executive Branch of government.
First, there is no excuse, none whatever, for leaks. And I say that with Nixon and “Deep Throat” (Mark Felt[1]) fully in mind. The ends do not justify the means. On this subject, there can be no equivocation.
It’s obvious that no organization, government included, can function effectively with its personnel betraying the confidences of their superiors, including disclosure of classified materials. On the other hand, as discussed in the particularly thoughtful comments, there is a well-founded concern that when government engages in impropriety, it would never be known but for the willingness of a leaker to do the dirty.
The conundrum is clear. Both sides have strong points, and it ultimately provides an unsatisfying middle ground that lacks sufficient definition to distinguish the righteous leaker from the rat. In the absence of a clear line, Judge Kopf offered his considerations on where the equities fall:
1. Should we trust leakers to know what to leak and what not to leak?
2. If one takes an oath to “well and faithfully discharge the duties of the office,” how is a leak of secret or privileged information consistent with that oath?
3. If the information is important enough to leak, then isn’t the more honorable, democratically acceptable and credible path to resign, make your objections known to the public, and willingly accept the consequences–both good and bad–of your actions?
All good questions, but there remains a normative point that needs to be taken into account: leakers have gone from faithless snitches to rock stars. Snowden? Rock star. Chelsea Manning? Commuted rock star. Mind you, if one considers what their leaks did to their lives, one would be hard-pressed to suggest that being a leaking rock star is a good career choice.
But still, in a world where Kim Kardashian is famous for being famous, and where self-righteous exclamations of self-absorbed morality seem to justify whatever you want them to justify, the allure of being a famous leaker isn’t exactly a negative incentive. If the worst that can happen to a leaker is to become an adored martyr of politics, why not?
And to make matters worse, people in high office are now encouraging and enabling leaks.
Now more than ever we need whistleblowers to come forward. I created an official website on how to leak to the press https://t.co/IjTar3hv6U
— Ted Lieu (@tedlieu) May 17, 2017
Would Congressman Lieu feel as kindly toward leaks if they were coming from his office? Notably, Lieu uses the word “whistleblowers” as opposed to leakers, which implicates certain laws that permit disclosure when someone discovers wrongdoing in government. But then, he doesn’t encourage “whistleblowers” to go to official channels, inspectors general for their agencies or departments, but straight to the media. His “resource” includes The Intercept and Pro Publica.
When the disclosure includes classified information, and when it comes to the feds, almost everything above toilet paper is classified, it’s not merely being a faithless snitch, but a criminal. If somebody thought D-Day was unfair to the Germans, would it be okay to tell the Times?
And therein lies the confluence of the normative shift, where members of government like Lieu are not merely tolerant of leaks, but actively encouraging them. The word “whistleblower” is artful malarkey; the Democrats are loving the leaks from within the Executive Branch that make Trump look worse than he makes himself look. And the newspapers would be barren if not for the daily deluge of leaks.
Later today, Jim Comey will testify before the Senate Select Committee on Intelligence. His opening statement is already out there, but rather than parse it for its revelations, creepy or otherwise, it’s being compared to the leaks from within the FBI that brought Comey’s interactions with Trump to light. That we’ve reached the point where top-ranking FBI officials are feeding the media anonymous leaks should be shocking, outrageous. It’s not that we don’t want to know the salacious details, but that an agency whose function demands an extraordinary level of confidence has burst a seam.
Is this somehow understandable? That relies on one’s personal weighing of the vagaries of justice and morality. If you hate Trump, no leak that reveals his impropriety is bad. But from the leaker’s perspective, it’s not left to each individual in government to decide whether to honor the oath, respect the chain of command, recognize that there may be things about which you are unaware because it’s above your pay grade which make a leak damaging to an extent and in ways you couldn’t possibly know. Yet, anybody who feels like leaking today because they’re so smart, or so clueless, is encouraged to do so, without a thought to the harm they might cause.
The Nuremberg Defense is usually the metric by which we judge faithlessness. Just “following orders” is not an acceptable defense to engaging in obvious, flagrant harm, heinous wrongs that no person can ignore with impunity. Are the things being leaked heinous? Are the people doing the leaking sufficiently knowledgeable to appreciate the harm they might do, whether knowingly or just for kicks?
Judge Kopf falls back on the oath, to “well and faithfully discharge the duties of the office.” While some will argue that if the president has exempted himself from the faithful discharge of his duties, why shouldn’t anyone else, the acceptance, if not encouragement, of faithlessness as an honorable choice will remain the norm after Trump leaves office.
Can a government, any organization, function if everyone involved gets to decide based on his own flavor of morality, or popularity, whether he’s obligated by honor to keep confidences? We may not be able to stop every drip, but do we really want to normalize the deluge?
Update: Based upon Jim Comey’s testimony, it appears that he solicited the aid of Columbia Law professor and former SDNY prosecutor Dan Richman to “leak” the existence and content of his memo to the media. This is a very different thing than an actual leak, since it came from the source with Richman being his mouthpiece to dissociate Comey from his disclosure. But this was not an improper internal FBI leak, but Comey concealing his identity while disclosing the content of his memo.
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Lieu and his ilk are encouraging leaks now, but will find they cannot get the genie back in the bottle when a Democrat is next in office. Better be prepared to live with the long term consequences.
Given the track record, I’m pretty sure Senator Lieu- senators in general, really- consider consequences to be somebody else’s problem.
I can’t help but wonder what Congressman Lieu’s position would be when he’s not a Congressman, but instead, wearing his colonel’s eagles and uniform as an Air Force Reserve Judge Advocate, called upon to advise a commander whether to prefer charges against an airman, such as our latest national security leaker, former airman Reality Winner?
I foresee the military in general will come down against any system where all service members get to decide, individually, if they will follow orders, based on their personal political beliefs or whether they like the officer(s) who gave the orders.
Dear Papa,
Let the deluge come. You’re behind the times. Zuckerberg announced the death of privacy in 2010. It’s already normalized, and if it’s not, it will be by the time the youngsters are in charge.
Get your fiddle ready, you’re going to need it.
Yours,
PseudoKid
And yet, I would never tell who you were, because I’m no Zuck.
The groundlings on FB are one thing. In the WH? I might hope they rise above begging for likes. Let me dream.
Scott,
What do you think about Mr. Comey’s statement that he caused the leaks of his memos through an intermediary after he was fired, in the hopes it would prompt the appointment of a special counsel?
From the Times today:
Comey orchestrated a leak
Mr. Comey acknowledged that he orchestrated the leak that revealed his account of his conversation with Mr. Trump in which the president asked him to drop the investigation into the former national security adviser.
Mr. Comey said he decided to make the conversation public through an intermediary after Mr. Trump said on Twitter that the former FBI director had better hope there were no tapes of their discussions. He said he did so with the explicit hope of triggering the appointment of a special counsel to investigate Russian election interference.
“I woke up in the middle of the night on Monday night, ‘cause it didn’t dawn on me originally that there might be corroboration for our conversation; there might be a tape,” Mr. Comey said, referring to May 15. “And my judgment was I needed to get that out in the public square so I asked a friend of mine to share the content of the memo with a reporter. Didn’t do it myself for a variety of reasons but I asked him to because I thought that might prompt the appointment of a special counsel. So I asked a close friend of mine to do it.”
All the best.
RGK
I had updated the post to note this testimony, though the Times article came after my update.
First, I no longer think it’s properly characterized as a leak, though that was how Comey sought to have it perceived. Since Dan Richman “leaked” it at the request of its author, it was intentionally disseminated by the person who created it. Leaks are unauthorized. This was done with authority.
Second, much as I understand why Comey wanted to maintain the appearance of silence in the face of the storm, his disseminating this memo through a mouthpiece is beneath the level of integrity I had expected of him. It was cowardly. He could reveal it and take the heat. He could withhold it until he was ready to take the heat. But feigning a leak to disclose it while avoiding the heat is troubling.
Third, there is nothing unlawful about the revelation. It wasn’t classified. It might have been privileged (though doubtful given Trump’s twits about it), but executive privilege doesn’t preclude a former official from revealing non-classified information about his time in office, but only protects privileged information from compelled disclosure.
Fourth, if he sought to “prompt the appointment of a special counsel,” he should have manned up, gone public and advocated for it. This was not his bravest moment.
SHG,
Thanks for your explanation and views. I share your thoughts almost entirely.
However, I need to do some research to satisfy myself that Comey did not break the law. The memos did not belong to Comey as I see it, but rather they belonged to the government. If he took the memos without permission from DOJ or the FBI, I am fuzzy about whether that “theft” was a violation of a criminal statute or three.
By the way, I hate D.C. for the same reasons and with same intensity that I binge watch House of Cards. All the best
I’m up to Episode 6 of Season 5 for tonight. I’m not clear on why the memos would belong to the government, as he was under no legal constraint to memorialize his recollections of the conversations. Just because he was in the govt’s employ at the time doesn’t per se cause his personal notes to become govt property. Unless there’s law that says they do, but I’m not aware of any. Then again, this may be why the Senate never confirmed my nomination. Or why I was never nominated.
But if these notes were produced for purposes related to his job, just why wouldn’t they lawfully belong to his employer?
He wasn’t self-employed; he worked for Uncle Sam, particularly for the President. These notes weren’t about an outside law review article he was writing or about what to pick up at the store; they specifically related to his job.
He had no obligation to write the memos, but once he did, it seems to me they belong to his employer, not him.
It’s not an unfuzzy question. Government work product is broadly defined, though I still this as personal memorializations of conversations rather than work related. If he didn’t make the notes, would he have failed to perform a job duty? This was over and above his duty to Uncle Sam. Or Wicked Uncle Don.
Leakers might be political darlings one week, but really, who trusts an oath breaker ever again? You can’t take your money with you when you die, but you can take your secrets.
Most are never revealed, so they get the titillation without the consequences.
SHG,
Regarding the “theft” question, see 18 USC section 641 (Whoever . . . knowingly converts to his use or the use of another, or without authority, . . . disposes of any record . . . of the United States” commits a federal felony or misdemeanor depending on the value of the time.
See also US v. DiGilio, 538 F2d 972 (3rd Cir., 1976) (unauthorized photocopies of office files of Federal Bureau of Investigation made by FBI office clerk-typist by use of government equipment and government supplies constituted “records” of Government within this section proscribing the conversion of “records” of the United States and supported convictions for violations of this section).
Caution: This is quick and dirty. I am not accusing Comey of a crime. I am, however, unclear under what authority the former Director had to take copies of the memos he made on the government’s nickel after Trump fired him.
All the best.
RGK
SHG,
The first paragraph at the end of my second comment should read “depending on the value at the time.” By way, HAL stopped me again. It is also true I can’t sing.
All the best.
RGK
It’s HAL’s fault. It’s always HAL’s fault.
I see that brother Turley has been having the same discussion, except with himself. It appears that he reached no conclusion.
If these were investigation reports, you would clearly be right. But my thinking is that they’re personal notes, prepared for his own personal use, rather than official reports. If I recall correctly, he kept the originals and gave them to Mueller. Is this a distinction without a difference? Maybe.
“But then, he doesn’t encourage “whistleblowers” to go to official channels….”
There was a time when one way to bring official misconduct to public attention was to disclose the information to an elected representative. It’s interesting that the Congressman doesn’t say, “Bring it to us.” Has the Congress given up on its role in holding the machinery of government to account? Would the Senate’s Intelligence Committee be holding this hearing if Mr Comey had delivered his statement and notes directly to the Committee, instead of to the press?
We’re only as sick as our secrets…And our government seems to have many. So many that it’s apparently impossible to function without giving access to a 25-year-old contractor with the silliest name I’ve heard in years. If we did a better job of separating that which actually needs to be protected from that which is merely unflattering truths, I think we’d be much better off.
Also, I keep waiting to hear the news that a shot-caller is losing their job because of a breach. Never seems to happen though. I wish I could say private business is different but it’s really not. Until someone high enough in the hierarchy of an organization to make actual change is held accountable for data protection, this will probably keep occurring.
Why do you hate the name Reality Winner? Are you seriously namist, or only when it involves women?
Damn hippies.
Well, why is Reality Winner so opposed to a former reality host? I don’t get it.
Jealousy?