The Basic Legal Framework
On the enforcement side, the administration might have a range of
criminal statutes and enforceable legal obligations to use (or threaten
to use) to stem the tide of leaks.
Criminal Statutes
The cornerstone of anti-leak law is a provision of the Espionage Act of 1917, codified at
18 U.S.C. § 793,
which criminalizes improperly accessing, handling, or transmitting
“information respecting the national defense” with the intent of
injuring the United States or aiding a foreign nation. Under
Supreme Court precedent,
“national defense information” is broadly defined and includes
sensitive information relating not only to the military, but also to
national security more generally. As Professor Patricia Bellia
notes, while “the phrase ‘national defense information’ used throughout
§§ 793
and 794 is not coterminous with the phrase ‘classified information,’”
nevertheless “a document’s classification status could provide evidence
that the document was closely held or that the document, if transmitted,
would injure the United States or aid a foreign nation.”
Later amendments added
18 U.S.C. § 798,
criminalizing the disclosure of various kinds of classified information
including information “concerning the communication intelligence
activities of the United States or any foreign government.”
Section 798
contains no explicit intent requirement: in order to violate that
provision, one need only “knowingly and willfully” communicate the
information. Notably, this is the provision of the law which FBI
Director Comey famously determined Hillary Clinton did not violate,
despite demands for prosecution from President Trump and other political
opponents. While the law facially allows prosecution for mere gross
negligence, in reality it does seem to require some
degree of intent.
The other law that often forms the basis of leak prosecutions is the general theft statute at
18 U.S.C. § 641.
This provision makes it a crime to steal, sell, or convey “any record,
voucher, money, or thing of value of the United States or of any
department or agency thereof.” The federal courts of appeals differ on
applying this statute to leaks of government information: while all of
the circuits recognize the government’s property interest in records and
documents (so if you physically steal actual records, the statute most
certainly applies), some refuse to extend that to the underlying
information contained in the records.
Other laws criminalize more specific leaks. The
Intelligence Identities Protection Act, for instance, makes it a crime to reveal the identity of covert agents. Former CIA officer John Kiriakou
was indicted
under this act and the Espionage Act for leaking classified information
relating to the CIA’s detention and interrogation program. He pled
guilty in 2012 and was the first CIA officer to serve a prison sentence
for leaking. This is also the substantive offense at the heart of the
Plame affair, discussed below.
And beyond those substantive offenses criminalizing leaking itself, there’s the crime of making false statements. Under
18 U.S.C. § 1001,
it is a felony offense to “knowingly and willfully . . . make[] a
materially false” statement in the course of an investigation by any
branch of the federal government. So if you lie about a material fact in
the course of a leak investigation (see more below on investigations),
you’ve committed another substantive felony, and one that is very
frequently prosecuted.
This provision is used far more frequently than the others, in part
because of the aggravating nature of lying to law enforcement and in
part because the offense is easier to prove. As the saying goes, it’s
not the crime, it’s the coverup.
For example, the high-profile leak investigation of the naming of
covert CIA operative Valerie Plame might have involved the Intelligence
Identities Protection Act, but prosecutors ended up indicting Scooter
Libby, Vice President Cheney’s chief of staff, on multiple counts of
obstruction of justice, perjury, and making false statements. As
The Washington Post
reported at the time, the U.S. Attorney on the case “noted that proving
illegal disclosure of classified information under various federal
statutes is difficult,” in part because many require proving specific
knowledge or intent.
Leak Investigations
Typically, classified information leak investigations are overseen by
DOJ’s National Security Division and conducted by the FBI. In a
2006 interview,
David Szady, former assistant director for counterintelligence at the
FBI, outlined how leak investigations proceed.
First, the “victim
agency” (the owner of the classified material) refers the matter to the
Department of Justice, who decides whether to open an investigation.
Importantly, investigations are opened
only when the leaked information is accurate—that
is, the mere fact of an investigation is an indirect confirmation of
the accuracy of the leak.
DOJ then sends the file to the FBI, who
conducts the actual investigation, typically reviewing documentation and
signals intelligence but sometimes through interviews and polygraphs.
Editor Note
Under the obama administration the FBI was corrupt and included many corrupt FBI officials. It still contains corrupt agents that leak information.
Not only the FBI leaks information but other people who work in the government who oppose President Trump and will do ANYTHING including leaking government information.
Now Bill Barr the Attorney General has an ongoing criminal investigation that involves what the FBI has been doing that was ILLEGAL!
Making false statements, disclosure of various kinds of classified information, improperly accessing, handling, or transmitting
“information respecting the national defense” with the intent of
injuring the United States or aiding a foreign nation, “knowingly and willfully” communicate the
information.
So if you lie about a material fact in
the course of a leak investigation
you’ve committed another substantive felony, and one that is very
frequently prosecuted.
FBI leadership and FBI agents are being investigated for the above CRIMINAL violations.
Not only the FBI but others including those in the media and other areas of the "deep state".
A grand jury is investigating the FBI and other deep state corruption.
There will be those who will go to jail.
These people know their leaking is soon to be exposed.
Many don't care, they just will continue to leak government information.
These people are corrupt crimminals who should be prosecuted.
Most of all Obama and Hillery should also be prosecuted.
17 Violations done by the FBI
Appendix 1 of Review of Four FISA Applications and Other Aspects of the FBI’s Crossfire Hurricane Investigation —
Full Report
has 3 sections about supporting documentation and there is NONE!!
ALL The Assertions in 4 FISA Applications indicate the infomation given to the FISA court were not factual at all.
This is just some of the information the criminal grand jury is investigating under Attorney General Barr.
I hope justice will prevail and the corrupt FBI officials and other deep state individuals will do jail time for their criminal activities.
