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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

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Cases: 327477

Reported Deaths: 3751
CountyCasesDeaths
Hennepin688981130
Ramsey28948512
Anoka23196232
Dakota23102194
Washington14590120
Stearns14314121
St. Louis9280117
Scott881056
Wright827145
Olmsted702536
Sherburne608243
Clay521359
Carver501315
Kandiyohi432024
Rice427738
Blue Earth426617
Crow Wing376237
Otter Tail332725
Chisago326914
Benton317253
Nobles313731
Winona292031
Douglas278439
Mower270623
Polk266226
Morrison241730
Lyon228712
Beltrami227518
McLeod226517
Becker217619
Goodhue216930
Steele20568
Itasca202223
Isanti199517
Carlton198417
Todd187414
Nicollet169426
Mille Lacs161231
Freeborn15966
Le Sueur153511
Brown151015
Cass149910
Pine14298
Waseca141811
Meeker139011
Roseau12475
Martin121221
Hubbard117728
Wabasha11041
Redwood101720
Chippewa9508
Cottonwood9284
Renville92729
Dodge9110
Watonwan8824
Wadena8537
Sibley8194
Rock8019
Aitkin79530
Houston7694
Fillmore7480
Pipestone74718
Kanabec67714
Yellow Medicine67612
Pennington6758
Swift6149
Murray6064
Faribault5902
Pope5641
Clearwater5389
Stevens5333
Marshall5289
Jackson5181
Lake4437
Wilkin4115
Koochiching4106
Lac qui Parle3984
Unassigned38259
Lincoln3721
Norman3638
Big Stone3332
Mahnomen3164
Grant2956
Kittson2408
Red Lake2283
Traverse1521
Lake of the Woods1021
Cook790

Iowa Coronavirus Cases

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Cases: 234817

Reported Deaths: 2486
CountyCasesDeaths
Polk34631341
Linn14655168
Scott1166189
Black Hawk11194139
Woodbury10622133
Johnson979337
Dubuque941594
Story698323
Pottawattamie664871
Dallas657159
Sioux380529
Webster371639
Cerro Gordo367649
Marshall357647
Clinton341444
Buena Vista313114
Des Moines298621
Muscatine298271
Warren291714
Plymouth284444
Wapello263772
Jones235917
Jasper229746
Lee225617
Marion210222
Carroll203624
Bremer200212
Henry19137
Crawford181016
Benton174023
Tama156641
Washington149715
Jackson148814
Delaware147021
Dickinson143811
Boone142412
Mahaska133328
Wright13007
Clay12254
Buchanan122010
Hardin121011
Hamilton117713
Page11664
Kossuth11608
Clayton11399
Cedar112513
Harrison110832
Floyd110219
Calhoun10907
Fayette108712
Mills10858
Lyon10619
Butler10576
Winneshiek102713
Poweshiek102013
Iowa100213
Winnebago94825
Cherokee9474
Chickasaw9084
Hancock9008
Sac8978
Louisa89321
Grundy88911
Allamakee87013
Mitchell8369
Cass83524
Union8166
Appanoose80713
Humboldt8015
Shelby79511
Emmet78626
Guthrie77115
Franklin76021
Jefferson7512
Madison7174
Unassigned7050
Palo Alto6734
Keokuk6477
Pocahontas5984
Howard5809
Osceola5411
Greene5401
Ida53013
Clarke5004
Montgomery49311
Davis4819
Taylor4773
Monona4516
Monroe45113
Adair4489
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