Donald Trump's 'self serving' strategy on leaks

On Friday morning, President Donald Trump fired off ...

Posted: Apr 28, 2018 7:47 AM
Updated: Apr 28, 2018 7:47 AM

On Friday morning, President Donald Trump fired off this tweet about fired FBI Director James Comey: "Is everybody believing what is going on. James Comey can't define what a leak is. He illegally leaked CLASSIFIED INFORMATION but doesn't understand what he did or how serious it is. He lied all over the place to cover it up. He's either very sick or very dumb. Remember sailor!"

It's the latest in a series of attempts by Trump to tar Comey with the "leaker" label. Comey has pushed backed, insisting that what he did -- giving unclassified memos to a friend to disseminate to the media in hops of forcing the appointment of a special counsel -- was not only entirely lawful but also in the public's best interests.

So, is Comey a leaker? A liar? Or a concerned citizen? In search of answers, I reached out to Heidi Kitrosser, a law professor at the University of Minnesota Law School, who specializes in "the constitutional law of federal government secrecy and on separation of powers and free speech law more broadly." Our conversation, conducted via email and lightly edited for flow, is below.

Cillizza: Let's start simple: Define "leak" in the context of the federal government.

Kitrosser: At the most basic level, a "leak" in this context means the unauthorized disclosure of information. That might range from a disclosure that is merely indiscreet -- say, of information that one's boss would prefer not be shared because it's embarrassing -- to a disclosure that conveys classified information to a person not cleared to receive it. In the context of the great Trump-Comey War of 2017-2018, Trump is alleging that Comey engaged in the latter type of leak -- that is, that Comey leaked classified information to the media, the public, or to others not cleared to receive it.

Cillizza: What makes a leak a potential criminal act?

Kitrosser: Focusing on the classified information context, there are a few potentially relevant statutes.

The broadest and most important one is the Espionage Act. Among other things, the act criminalizes the willful dissemination, "to any person not entitled to receive it," of any documents "relating to the national defense," or any "information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation."

You might notice that the quoted language does not specifically reference classified information. Indeed, the Espionage Act in its original form was written in 1917, long before the US government had a classification system in place. However, courts have read the "not entitled to receive it" language in light of the classification system. In other words, they interpret the language to mean that only those persons who are authorized, under the classification system -- which is largely a product of executive order and related regulatory actions -- to receive classified information are entitled to receive it under the terms of the Act. Given the breadth and malleability of the act's remaining requirements, the bare fact that information is classified often will be enough to bring it within the act's scope.

Cillizza: Explain the difference between whistleblowers and leakers.

Kitrosser: I think that there are at least two senses in which one can answer that question.

The first is in a colloquial sense focused on ethics and morality. Colloquially, I think that most people think of "whistleblowers" as persons who justifiably reveal wrongdoing. So from that perspective, a "whistleblower" is someone who is morally or ethically correct -- perhaps even duty-bound -- to reveal information, despite the fact that their superiors might not want them to do so.

Leaking, on the other hand, is a more morally and ethically ambiguous term. At best, it's morally and ethically neutral, and at worst it's used as a pejorative.

The other sense in which to consider the distinction is a legal one. Laws like the Whistleblower Protection Act of 1989 and the Whistleblower Protection Enhancement Act of 2012 define some disclosures as "whistleblowing" and deem them protected disclosures.

Importantly, however, those particular laws do not cover the disclosure of classified information. Persons who convey classified information without authorization receive far less protection. Most notably, they are subject to prosecution under the Espionage Act. Indeed, Edward Snowden has said that he believes he could not get a fair trial were he to return to the US, because under the Espionage Act, it makes no difference if your disclosure revealed wrongdoing or served the public interest.

Cillizza: Donald Trump has repeatedly accused James Comey of illegally leaking the classified contents of memos he wrote. Comey has said he leaked unclassified information. How big a distinction is that?

Kitrosser: It's a very big distinction. Most importantly because a leak of classified information might implicate the Espionage Act, whereas a leak of unclassified information is unlikely to do so.

The distinction also has political resonance. Among other things, Trump clearly is trying to gain the political high ground by suggesting that Comey leaked classified information and somehow put America's national security at risk. Comey, in turn, maintains that the information was not classified and that the disclosures served the public interest.

Cillizza: Finish this sentence: "Donald Trump's accusations regarding leaks are _________." Now, explain.

Kitrosser: "Donald Trump's accusations regarding leaks are self-serving."

If this were a spoken conversation, this would be the part in which I sputter helplessly while trying to decide where to begin! But I suppose I'll put it this way: Trump is a guy who couldn't get enough of WikiLeaks throughout the 2016 campaign, and who, to put it mildly, has not exactly demonstrated concern or facility for keeping a lock on the vast trove of national security information to which he has access as President. So I find it, um, interesting, to witness his professions of concern that Comey's written recollections revealed information that may or may not have retroactively been deemed classified.

I should also mention, for context, that the classification system is notoriously overbroad. It thus is entirely possible that, of the thousands of persons with original classification authority, one might retroactively classify a memo that its author and informed others consider entirely innocuous from a national security perspective.

Minnesota Coronavirus Cases

Data is updated nightly.

Cases: 486434

Reported Deaths: 6575
CountyCasesDeaths
Hennepin1009131586
Ramsey43165803
Dakota36375392
Anoka33335388
Washington22121258
Stearns18752201
St. Louis14822263
Scott13308107
Wright12538116
Olmsted1181788
Sherburne874172
Carver775640
Clay692387
Rice670791
Blue Earth596635
Kandiyohi579674
Crow Wing521282
Chisago499545
Otter Tail483270
Benton447790
Winona418549
Mower405731
Douglas393368
Nobles387247
Goodhue386269
Polk343763
McLeod340049
Beltrami338651
Morrison324747
Itasca313646
Lyon313644
Becker312542
Isanti306756
Steele301511
Carlton300149
Freeborn282623
Pine282016
Nicollet259241
Todd248330
Brown245537
Le Sueur235720
Mille Lacs227947
Cass220424
Waseca209317
Meeker207434
Martin189928
Wabasha18673
Roseau180317
Hubbard160740
Houston157414
Dodge15294
Renville150340
Redwood147027
Fillmore13768
Chippewa136735
Pennington136316
Cottonwood135020
Wadena131020
Faribault123417
Aitkin119033
Watonwan11758
Sibley117310
Rock115914
Kanabec107519
Pipestone101624
Yellow Medicine97617
Murray9488
Jackson93610
Swift87918
Pope8075
Marshall78015
Lake74218
Stevens7418
Clearwater71914
Lac qui Parle68516
Wilkin67411
Koochiching61911
Big Stone5163
Lincoln5092
Grant4918
Norman4788
Unassigned44568
Mahnomen4417
Kittson40921
Red Lake3625
Traverse3075
Lake of the Woods2191
Cook1180

Iowa Coronavirus Cases

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Cases: 335218

Reported Deaths: 5443
CountyCasesDeaths
Polk51785551
Linn19463313
Scott17080210
Black Hawk14924292
Woodbury13778212
Johnson1312174
Dubuque12416194
Dallas1019092
Pottawattamie9828143
Story959345
Warren511674
Clinton500784
Cerro Gordo498882
Webster494487
Sioux479169
Marshall463072
Des Moines427161
Muscatine424191
Buena Vista412237
Wapello4025108
Jasper386266
Plymouth367478
Lee354252
Marion339869
Jones284654
Henry279637
Bremer268754
Carroll266349
Crawford252235
Boone242830
Benton240354
Washington239047
Mahaska215246
Jackson209738
Dickinson202440
Tama202365
Kossuth198055
Delaware185540
Clay183825
Winneshiek182827
Fayette178635
Page177819
Buchanan176929
Wright173831
Hamilton173742
Cedar171523
Hardin169439
Harrison167169
Clayton159854
Butler158831
Mills147920
Floyd147741
Poweshiek147730
Lyon145541
Cherokee145336
Allamakee142347
Madison141918
Iowa139423
Hancock137630
Grundy132030
Winnebago130231
Calhoun129311
Cass128751
Jefferson128334
Appanoose123147
Louisa122341
Mitchell120440
Chickasaw119615
Union118731
Sac118318
Shelby116433
Emmet115040
Humboldt113525
Franklin109019
Guthrie108928
Palo Alto100921
Howard99021
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Clarke94720
Keokuk92029
Monroe89428
Adair81028
Ida81032
Pocahontas80919
Davis76323
Monona76327
Greene72910
Lucas71421
Osceola68215
Worth6667
Taylor64112
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Ringgold50520
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