Government leaks can be helpful, but where do we draw the line?
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When he ran for office, President Donald TrumpDonald TrumpEx-DOJ official Rosenstein says he was not aware of subpoena targeting Democrats: report Ex-Biden adviser says Birx told him she hoped election turned out 'a certain way' Cheney rips Arizona election audit: 'It is an effort to subvert democracy' MORE was high on leaks: “I love WikiLeaks,” he said. Nowadays, he appears to have changed his tune on the issue dramatically. 

But let’s digress slightly. In October 1962, at the height of the Cuban Missile Crisis, U.N. Ambassador Adlai Stevenson privately counselled President Kennedy — apparently against the wishes of Kennedy's entire security apparatus — to accept a U.N. missile moratorium that would remove U.S. missiles from Turkey. 

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Stevenson had become immensely popular when he had demanded that Russian Ambassador Zorin respond to Stevenson’s surveillance photographs of Cuban missile bases. He famously stated that he was “prepared to wait until hell freezes over” for an answer. 

 

Soon afterward, an article containing a troubling leak, likely from the Kennedys, claimed that Stevenson had counselled “a Munich-like" appeasement. Many bemoaned that leak — it would discourage a president’s confidantes from communicating views he truly needs to hear.

This was likely a valid concern. After all, that leak seemed motivated by personal or political pique, given Stevenson’s popularity and the fact that he had challenged Kennedy for the 1960 nomination.

But what about current leaks? They seem totally different. Stories have leaked that suggest unrest, discord, chaos or possibly even criminal conduct in Trump's administration. The list of suspects is long — his inner circle, Obama administration holdovers, or career officers (FBI agents, Homeland Security personnel or CIA operatives).  

One leak led directly to National Security Agency Director Michael Flynn’s resignation over his contacts with Russians that he falsely denied to Vice President Mike PenceMichael (Mike) Richard PenceOn The Money: Democrats wary of emerging bipartisan infrastructure deal, warn of time crunch Pence buys .9M home in Indiana Pence to visit Iowa to headline event for congressman MORE.

Another — that Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsEx-DOJ official Rosenstein says he was not aware of subpoena targeting Democrats: report Nixon's former White House counsel: Trump DOJ was 'Nixon on stilts and steroids' Garland sparks anger with willingness to side with Trump MORE failed to disclose his pre-election meetings with Russian officials during his confirmation hearing — led to Sessions’ recusal from Justice Department investigations relating to the Trump campaign and Russian election interference.

Some leakers, maybe today more than ever, fear that the administration is heading off the rails. The motivations for these leaks appear far different from the personal motivation behind the Stevenson leak, which didn’t affect policy or official action. One might actually applaud the Flynn and Sessions leaks.

Thus, the question must be asked, if leaks don’t violate laws, shouldn’t they be encouraged? Shouldn’t insiders help disclose what's wrong with government workings? Without input from insiders, the inner workings of government, which affect us all, will be kept behind the closed doors of government. 

There’s a flipside, however — as leaks mount, a president will be able to trust his advisors less and less. The president will lack confidence that an issue being debated and discussed will stay inside the proverbial room.

The president will doubt whether his advisors are expressing their honest thoughts, should they be fearful of being outed, like Stevenson, for having proffered unpopular positions. 

The president and his advisors must have that confidence. They must know that no one in the room will leak that he asked a question, or verbalized a “dumb idea”  — something we all do — to reach the “right” decision.

I likely wouldn’t have written this piece without the Trump administration and its aberrant activities leading to the problems percolating in Washington these days. Isn’t that where the rubber meets the road? 

It’s too simple, too facile and too subjective to argue that leaks are acceptable if they’re in “the public interest.”  The public interest holds different meanings for different people. What about, “Does the nation really need to know?”  That too can’t be a standard; after all, who is to decide? 

Do we really need to know, as we have read in the press, that the president doesn’t review his daily security briefings? What about the leak that Trump insiders who best know the Constitution weren’t consulted on the initial travel ban before it was executed?  

Let’s entertain a few pure hypotheticals: The president received a “secret” promise from Supreme Court nominee Judge Neil Gorsuch that he would support any executive travel ban order if confirmed by the Senate; a Russian intelligence officer told a former ranking Trump campaign manager during the campaign that Russia was hacking Hillary ClintonHillary Diane Rodham ClintonTrump asks Biden to give Putin his 'warmest regards' Huma Abedin announces book deal Mystery surrounds Justice's pledge on journalist records MORE Campaign Manager John Podesta’s emails, without encouragement by the Trump campaign to do so; the president decided to execute the Yemen raid against all advice, hoping to make President Obama look bad. 

Is there any reason to believe that people would not disagree as to whether those statements, if true, should be leaked? It would be preferable, of course, to apply some objective standard, but what/who could define that standard? 

Here’s the problem — if we limit the propriety of leaking to genuine circumstances where the public must know it to protect itself from a wayward administration, possibly none of them qualify. 

But once we decide that certain leaks are “acceptable,” we go down the slippery slope until we reach the point where we conclude it is always proper for insiders to leak information that those leakers believe the public “might” want to know.  

By way of history, there is considerable speculation that President Franklin Delano Roosevelt was actually aware that the Japanese intended to attack Pearl Harbor in December 1941.

As the story goes, the president did nothing, perceiving that a successful attack against America would gain public approval for war against Japan. Is it conceivable, if something similar happened today, that it would not be leaked? No way. Should it be leaked? Probably! Still, as lawyers say, reasonable minds may differ. 

Former Associate Justice of the Supreme Court Louis Brandeis famously noted: “Sunlight is the best disinfectant.” While one may agree with Justice Brandeis generally, the question of whether leaks are good is an extremely difficult one to answer.  

Members of the media (and surely Daniel Ellsberg, for example), might not see it that way. After all, leaks are the lifeblood of the media, and their practitioners are hardly objective on the subject. 

Truthfully, we need a group of individuals, above reproach and with no agenda but the best interests of the nation, to decide: publicize or remain silent. In reality, it’s hard to find a proper balance and vehicle for implementation, and I therefore invite a thoughtful, national conversation to address this troubling issue.

To be clear: I, for one, want my president, whoever he or she is, to receive the best (confidential) advice possible from his well-chosen confidantes. I don’t want total transparency for White House decisionmaking, but I do want the press to report when he’s getting advice that is bad for America and, only by publicizing it, stop him from its implementation.

 

Joel Cohen is of counsel at Stroock & Stroock & Lavan LLP, a firm that serves leading financial institutions, multinational corporations, investment funds and entrepreneurs nationwide.


The views expressed by contributors are their own and not the views of The Hill.