Tuesday, August 6, 2019

Is It A Crime To Leak "Classified Information?"

Commenter Unknown has expressed  a concern that I suspect is shared by many:

Today, Judicial Watch reported that 14 FBI officials were referred to OPR for leaking classified or sensitive information to the media. Four were terminated and none (to date) have been prosecuted.

 I blame myself to some extent for not having addressed this concern in the past. It's an area of law that is little understood by persons who don't deal with it for a living.

Is there an easy answer to the question: Is It A Crime To Leak Classified Information?

The answer is: Yes.

Or: No.

What criminal statute covers the leaking of classified information? OK, that question really does have an easy answer: 18 U.S. Code § 798. Disclosure of classified information. According to this statute,

(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information— 
(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or 
(2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or 
(3) concerning the communication intelligence activities of the United States or any foreign government; or 
(4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes— 
Shall be fined under this title or imprisoned not more than ten years, or both.

I trust you can see the problem right away. The type of information covered by this statute is highly specific--it must pertain to "communications intelligence systems and activities of the United States." If it doesn't, then the leak isn't a crime. Now, there are other statutes--such as the Espionage Statute, 18 U.S. Code § 793. Gathering, transmitting or losing defense information, but the same caveat applies: the type of information covered is highly specific and restricted. I suppose that has something to do with the First Amendment. And see below re that word "classified".

Journalists, and pundits, and lowlives like politicians, like to try to make hay out of claims that so-and-so has committed a criminal act by mishandling classified information. Sometimes they have. James Comey and Hillary Clinton come to mind. OIG certainly (or so we're told in leaks) referred Comey for prosecution--although prosecution was (or so we're told in leaks) declined. Part of the problem in the Comey case that made it--in OIG's opinion--prosecutable was that Comey appears to have stolen government property. IOW, the memos he wrote for FBI files were FBI property, but he treated them as his own personal property. He had a problem distinguishing meus and tuus.

What do we know about the specific circumstances of the 14 FBI  officials referenced by Judicial Watch? Not much, except that they "leaked" to the media. Since four of them were fired, we assume that whatever it was they did violated the terms of their employment--the internal regulations that they agreed to obey. So they were canned. That's not a small thing. Being actually fired for having violated a confidentiality agreement with an employer doesn't exactly make you attractive to prospective employers. OPR probably did the right thing.

But the point is that you only get prosecuted for an actual crime, and leaking classified information isn't necessarily a crime--not without highly specific circumstances coming into play. In this day and age it's kind of comforting to know that DoJ at least sometimes follows the law.

Here's a link that explains some of that business about the law--Unauthorized Disclosure of Classified Information:

But here's one with all the caveats--Not All Leaks of Classified Information Violate the Law:

“The unauthorized release of classified information is a crime–it is a crime–because it threatens our national security and puts the lives of those who are sworn to defend our Nation in jeopardy,” said Sen. John Cornyn (R-TX) said on the Senate floor yesterday. “Everyone agrees [this] is criminal conduct.” 
A resolution introduced by Sen. John McCain and twenty Republican colleagues calling for appointment of a special counsel to investigate recent leaks stated flatly that “the unauthorized disclosure of classified information is a felony under Federal law.” 
But these statements are imprecise and misleading.  While some unauthorized disclosures of classified information are indeed contrary to law, it is not the case that all such disclosures violate the law.  In fact, there is no law that categorically prohibits the release of classified information. 
“It must be acknowledged that there is no comprehensive statute that provides criminal penalties for the unauthorized disclosure of classified information irrespective of the type of information or recipient involved,” wrote Attorney General John Ashcroft in an October 2002 report to Congress. 
Likewise, according to the Congressional Research Service, “there is no one statute that criminalizes the unauthorized disclosure of any classified information…. It is possible that some of the government information… does not fall under the express protection of any statute, despite its classified status.” 
Some types of classified information are specifically protected by law, including that pertaining to communications intelligence, identities of covert agents, and nuclear weapons design information.  But the Espionage Act statutes that have been used to prosecute most leak cases (18 USC 793, 794) do not mention “classified information” at all.  Rather, they apply to “national defense” information, an imprecise term that is not coextensive with “classified” information. 
Even when “national defense” information that is clearly covered by the Act is disclosed to an unauthorized person, it does not necessarily follow that a crime has been committed. Courts have interpreted the convoluted language of the Espionage Act to mean that only those with the requisite criminal intent will have violated the law. 
In order to convict someone of unauthorized disclosure of national defense information (not involving disclosure of documents), Judge T.S. Ellis, III, the presiding judge in the AIPAC case, ruled in 2006 that it would be necessary for prosecutors “to demonstrate the likelihood of [the] defendant’s bad faith purpose to either harm the United States or to aid a foreign government.” 
If White House officials disclosed classified information to reporters without authorization, it is doubtful that they intended to harm the United States or to aid a foreign government by doing so. 
For these reasons, it is not true that “everyone agrees [this] is criminal conduct.”


  1. While I understand that the system is designed to be gamed it is still disheartening to have it flaunted that any random E-2 in the U.S. military is assumed to be more honorable and possess a greater sense of duty, by law, than any Director of any LEO, IC bureau or Secretary of State. The corruption of our government is not a fluke, it has been crafted as such.
    Tom S.

    1. But we probably don't want our society at large run like the military.

    2. No, but a sense that our societal "leaders" possessed something other than sneering contempt for honor and duty might be a pleasant change.
      Tom S.

  2. Where there is a will, there is a way.

    McCabe committed perjury under oath in regard to his leaking conduct. Surely you would agree that he could be prosecuted for this act of perjury. Papadopoulus did prison time on a far less legitimate application of this law.

  3. "Where there is a will, there is a way."

    Really. You're telling me now that there was no will to frame Carter Page, no will to frame Trump? I don't buy that for a minute.

    McCabe was fired. We'll see what becomes of him. I fully expect criminal charges. I assume that the reason for delay is the same as for Comey--to place the individual criminal acts within the big picture of the fraud/hoax?

  4. Mark, you are misreading my comments.

    Your blog correctly (and vitally) states the importance of religion, ethics, morality, and integrity in the cultural wellbeing of any community. It is the decline of these core values and institutions that is responsible for much of what ails us, both as individuals and as a nation.

    For this reason, it is essential that men of good character stand up and be heard. Whenever possible, leaders should boldly step forward and proclaim that evil is bad and criminal behavior is wrong.

    Barr has the opportunity to make a difference in this regard. He can state clearly to the public that on his watch, the DOJ/FBI will no longer tolerate unethical or criminal conduct by its staff and leadership. He can give the precise example of the 14 FBI officials that OIG has referred to OPR. He can say . . . "I cannot undo the past, but by God, I can change the future!" That is what we desperately need at this time. That is Churchillian leadership.

    1. "Where there is a will, there is a way."

      Espousing this attitude exhibits an absolute contempt for the rule of law. That contempt is part of the culture of corruption that Barr is trying to reform.

      Nor is it the Attorney General's job to ask "How high?" every time you or Tom Fitton shout "Jump!" I understand Fitton needs to raise money for his very worthy organization, and I note that he doesn't keep ranting on about Barr the way you do. I don't begrudge him his fund raising, his need to keep Judicial Watch before the public eye. He performs a service, but people need to also keep what he says in perspective.

      Barr's job is to enforce the laws generally, as well as enforce regulations within DoJ. I note that you repeat "unethical or criminal conduct," yet you refuse to cite any criminal statute violated by the 14 unnamed individuals.

      Further you exhibit a lack of candor when you state that "McCabe committed perjury under oath in regard to his leaking conduct." The docs do not mention that Judicial Watch released do not mention "perjury" but state clearly: "SES employee released FBI sensitive information to a reporter and lacked candor not under oath and under oath when questioned about it..." There's no excuse for your misrepresentations--which I've noted several times in the past.

      Perjury and lack of candor under oath are not the same. The difference is explained in this article:

      Why the FBI Fires People for 'Lack of Candor'

      “Lack of candor is untruthfulness or an attempt to dissemble from the point of view of the investigator,” ... “The problem comes when, in answering a question, the person under investigation attempts to spin his answer in order to present his actions in the best possible light. This is normal human behavior, but can be interpreted as a lack of candor by the investigator.”

      IOW, the FBI can fire you for "lack of candor under oath" even if it might not be able to prove actual perjury. In perjury the Gov has to PROVE beyond a reasonable doubt that the person BELIEVED his statements to be false. In lack of candor that isn't necessary.

      Also, this happened under Sessions. Barr was not involved.

  5. Using the rigor of your argument regarding perjury versus lack of candor, how is that not applicable to Flynn and Papadopoulus, and how was it not wrong to coerce them into pleading guilty to perjury when lack of candor is, at worst, applicable to their conduct? How is it OK to bankrupt Flynn and send Papadopoulus to prison, but OK for McCabe and Strzok to be "retired" early with pension benefits for similar conduct?

    When I say "where there is a will, there is a way", that does advocate illegal (or even unethical) conduct on anyone's part. It is a call to work harder, and find a legal and ethical pathway to justice in the thousands of pages of laws already on the books. And even if I did this homework for them, I have no power to implement it.

    Last, I acknowledge that you're frustration with my comments is understandable and growing tiresome for you, but I also think we have more common ground than you realize.

  6. "Using the rigor of your argument regarding perjury versus lack of candor, how is that not applicable to Flynn and Papadopoulus, and how was it not wrong to coerce them into pleading guilty to perjury when lack of candor is, at worst, applicable to their conduct?"

    Please document for me that either of these men pleaded guilty to "perjury." "Perjury" and "false statements to the government" are emphatically NOT the same thing. You can find discussion of this here:

    False Statements and Perjury: An Overview of Federal Criminal Law

    It's OK to comment based on knowledge. In fact I encourage it and urge you to become familiar with the search engine of your choice. Knowledge is a good thing.

    "How is it OK to bankrupt Flynn and send Papadopoulus to prison, but OK for McCabe and Strzok to be "retired" early with pension benefits for similar conduct?"

    I don't write the laws and I don't say it's OK to bankrupt people maliciously. I acknowledge the inequities of our legal system and blame judges for failing to rein in prosecutors. My fondest hope is that eventually both men will be exonerated and will sue and win huge damages.

    By the same token, there is an explanation for what's going on with McCabe and Strzok. They were fired for cause, but they didn't plead guilty to any crime--as Flynn and Papa inadvisedly did (although I understand the pressures they were under). OTOH, the current situation of McCabe and Strzok may well prove small consolation to them if, as I expect, they are ultimately prosecuted for very serious crimes, including conspiracy to defraud as well as connected false statements. IMO, the overwhelming likelihood is that they will be prosecuted long before they ever draw on their pensions.

    Re the technical details on their pension rights, as usual the truth is complicated. Read about it here:

    Turns Out Andrew McCabe Didn’t Lose His Pension After All

    "McCabe has not been stripped of his pension at all. In fact, that is impossible to do to a federal employee after five years of employment."

    Bill Barr did not write that law, either.

  7. I spent a number of years as a federal special agent (nope, not going specific as some reader will troll my comment with some irrelevant attack on me or my agencies) It is common to conclude an interview, with "is there anything material to our discussions today that you are intentionally not telling us about". Pretty broad question, but any subject of an investigation knows exactly what they are withholding. McCabe is what we call and specially knowledgeable subject. While you would not expect someone who does his own taxes to know sophisticated issues related to 10K reports, a CPA would be a different story. When somebody like McCabe sits there like a lump on a log and implies, yep that is all I know, and there is much more..... then we call that lack of candor. An example, I once had 19 suspects in a drug ring, all 19 confessed when confronted with the evidence. And they snitched off their buddies, well all but 2. Those 2 would confess to exactly what they did, but would say zero about the other 18. So, when the case went for prosecution, there were 17 who cooperated and 2 who did not. The 2 who refused to finger the others in fact left those 18 other drug dealers free to stay in business by concealing what they knew. McCabe concealed what he knew. Is keeping quiet so others can continue with their crimes, a crime? Sure it is. It is often called misprision of felony. But McCabe had about 20 years of good federal service, so they let him walk. He still has his vested retirement which he will get at 60, but does not get it immediately like a normal federal law enforcement would. That delay is his punishment. My 2 cents.