White House Leaks: Lawbreakers Or Whistleblowers?

Leaks from the White House have been a persistent issue for many presidential administrations. The Trump administration, in particular, has been plagued by leaks, with former Communications Chief Anthony Scaramucci threatening to involve the FBI in his hunt for leakers. While some argue that such investigations threaten the freedom of the press, others maintain that they are necessary to protect classified information and national security.

The Espionage Act of 1917, which criminalizes the improper handling or transmission of information respecting the national defense, forms the cornerstone of anti-leak law. However, prosecuting leakers can be challenging and may raise First Amendment concerns. The complex dynamics surrounding White House leaks highlight the delicate balance between preserving government transparency and ensuring national security.

The Espionage Act of 1917

The Act made it a crime to convey information intended to interfere with the war effort and created criminal penalties for anyone obstructing enlistment in the armed forces or causing insubordination or disloyalty in military or naval forces. It also gave the Postmaster General the authority to impound or refuse to mail publications that violated its prohibitions.

Criticisms of the Espionage Act of 1917 include the argument that it is too broad and suppressive, chilling free speech and making it difficult for whistleblowers to expose governmental wrongdoing. Some have called for the Act to be repealed or amended to allow for a public interest defence.

The Intelligence Identities Protection Act

The law was passed in response to incidents where Central Intelligence Agency (CIA) agents' identities were revealed, and their subsequent assassinations or exposure of other agents. An example of this was the assassination of CIA Athens station chief Richard Welch by the Greek urban guerrilla group November 17 after his identity was revealed by the magazine CounterSpy.

The Act establishes criminal penalties, including fines and imprisonment, for those who disclose information identifying a covert agent. The penalties vary depending on the nature of the disclosure and the impact on U.S. foreign intelligence activities. For example, those who intentionally disclose information that identifies a covert agent can face up to 15 years in prison and/or a fine, while those who engage in a pattern of activities to identify and expose covert agents can face up to 3 years in prison and/or a fine.

The general theft statute

The statute is just one of several laws that can be used to prosecute leakers. The Espionage Act of 1917, for example, criminalises the improper transmission of "information respecting the national defence" with the intent of injuring the United States or aiding a foreign nation. The Intelligence Identities Protection Act, meanwhile, makes it a crime to reveal the identity of covert agents.

While there are a number of legal avenues for prosecuting leakers, the underenforcement of anti-leaking laws has been noted. This may be due, in part, to the benefits the Executive branch gains from a system that tolerates leaks, such as the ability to anonymously "plant" information in the media to further administration goals.

The First Amendment

• The freedom of religion: Congress cannot make laws that establish a national religion or prohibit the free exercise of religion. This includes the freedom to hold and express religious beliefs and to act on those beliefs, although religious practices that conflict with social duties or good order are not protected.
• The freedom of speech: Congress cannot make laws that abridge the freedom of speech. This includes the freedom to publicly express opinions and ideas without censorship or restraint by the government. However, this freedom is not absolute, and certain types of speech, such as false testimony under oath, are not protected.
• The freedom of the press: Congress cannot make laws that abridge the freedom of the press. This includes the right to publish and disseminate information, ideas, and opinions without interference or constraint by the government.
• The freedom of assembly: Congress cannot make laws that abridge the right of citizens to assemble peaceably.
• The right to petition the government: Congress cannot make laws that abridge the right of citizens to petition the government for a redress of grievances. This includes the right to communicate with and lobby government officials and to file lawsuits.

While the First Amendment guarantees these freedoms, there are some important limitations and qualifications. For example, commercial speech, which is speech done on behalf of a company or individual for profit, is generally afforded less protection than political speech. Additionally, the Supreme Court has ruled that the government may restrict some types of speech, such as obscenity, defamation, and false statements, as long as certain conditions are met.

With respect to leaks from the White House, the First Amendment would protect individuals' rights to speak to the press and publish information. However, it is important to note that other laws, such as the Espionage Act, may prohibit the unauthorized disclosure of classified information. The complexity of the legal framework surrounding leaks means that determining whether a specific leak violates the law can be challenging.

The Presidential Records Act

The PRA places the responsibility for the custody and management of incumbent presidential records with the President. The Act requires that the President and their staff take all practical steps to file personal records separately from presidential records.

The PRA establishes a process by which the President may restrict, and the public may obtain, access to these records after the President leaves office. Specifically, the PRA allows for public access to presidential records through the Freedom of Information Act (FOIA) beginning five years after the end of the administration. The President may restrict access to specific kinds of information for up to 12 years after leaving office.

The PRA also establishes preservation requirements for official business conducted using non-official electronic messaging accounts. It requires that any individual creating presidential records must use official accounts, or copy or forward a complete copy of the record to an official messaging account.

The PRA was amended in 2014, which established several new provisions, including the prevention of an individual convicted of a crime related to the review, retention, removal, or destruction of records from being given access to any original records.

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