Trump leakers could prove elusive targets
In President Trump’s White House, not even private conversations in the Oval Office stay secret for long.
A day after firing FBI Director James Comey, Trump met with Russian Foreign Minister Sergey Lavrov and Russian Ambassador Sergey Kislyak in the Oval Office.
Three of Trump’s most trusted advisers were present — Secretary of State Rex Tillerson, national security adviser H.R. McMaster and deputy national security adviser Dina Powell. Other than a photographer from a government-run Russian news agency, there was no media in the room.
And yet out of that small group, damaging and highly specific details attributed to U.S. government officials spilled on to the pages of The Washington Post and The New York Times.
Trump had revealed sensitive information to the Russians about an ISIS plot that Israeli officials had asked him to keep secret, the Post reported. And Trump had called Comey a “nut job,” saying that Comey’s firing had eased pressure on the administration from an investigation into Russian meddling in the 2016 presidential election, according to the Times.
The journey of information from the Oval Office to the front-pages was set in motion by an American note taker — either from the National Security Council (NSC) or the State Department — on hand to document the proceedings with the Russian diplomats.
That raw data was drafted into a memorandum of conversation — or “memcon,” for short — which was then sent through an editing and approval process by senior officials on the NSC. The memcon is then logged and registered as the official U.S. record of the meeting and kept on file either at the NSC or State Department.
The memcon is distributed — sometimes as a hard copy, to limit circulation — to relevant officials at the Department of State, Department of Defense, CIA, Office of the Director of National Intelligence and other agencies within the intelligence community.
Along the way, officials’ assistants can often see the material as well. Those with appropriate clearances can also view the memcons at the repositories where they’re kept.
At each step, the potential grows for confidential information to “jump the gap” into the press through leaks — a phenomenon that has exploded since Trump came into office.
“Dealing with leaks isn’t new, but the frequency and magnitude of the leaks affecting this administration is highly unusual,” said Dov Zakheim, the former undersecretary of Defense for former President George W. Bush. “He’s at odds with the intelligence community, the FBI and the media. That’s a lethal combination when it comes to leaks.”
Some of the leaks that have dogged Trump have come from the president’s own team as rivals angle for influence within the administration. Some have come from people within the government who leak to get Trump’s attention.
Others come from Trump foes looking to hurt the president. The leaks have provoked allegations from Trump’s allies that rogue “deep state” actors in the government are attempting a silent coup.
Trump signaled this week he would take a more aggressive approach to dealing with leaks after the British briefly suspended intelligence sharing with the U.S.
British Prime Minister Theresa May, fuming after The New York Times published classified information about the Manchester terrorist attack, raised the issue with Trump Thursday at a NATO summit.
Trump responded with a statement ordering the Justice Department and other relevant agencies to “launch a complete review” and pursue leak prosecutions in instances where crimes may have been committed.
Attorney General Jeff Sessions has previously stated that rooting out and prosecuting leakers would be a priority for his Justice Department.
The rapid pace of leaks — particularly those that impact national security — have caught the attention of top current and former intelligence officials in recent weeks. The leaks have been condemned by Republican and Democratic lawmakers alike as worries grow that the leaks will damage U.S. intelligence-sharing capabilities and expose assets in the field.
“These leaks continue to be very, very damaging leaks,” John Brennan, who served as CIA chief under former President Barack Obama, said at a Wednesday hearing on Capitol Hill. “I find them appalling and they need to be tracked down.”
Still, experts say identifying leakers and proving that a crime has been committed can be difficult in an environment where intelligence is shared widely across platforms and agencies.
In addition to the Manchester leak, only one other recent high-profile incident appears to be illegal. It is possible that someone could be charged with a felony for leaking details of a private conversation between former national security adviser Michael Flynn and a Russian official captured through U.S. surveillance to The Washington Post.
But the leaked details of Comey’s personal memos alleging Trump asked him to back off the Flynn investigation don’t appear to be illegal. Neither do the leaked Oval Office conversations between Trump and the Russian diplomats, or leaked details of past conversations with Mexican President Enrique Peña Nieto and Australian Prime Minister Malcolm Turnbull.
Leaks driving news stories about the FBI investigation into Russia, including the revelation that Trump adviser and son-in-law Jared Kushner has attracted agency scrutiny, don’t appear to come from grand jury material and so are likely not illegal, experts say.
The Justice Department relies on agency referrals to determine what leaks to pursue. According to the influential blog Lawfare, the agency gets about 40 referrals a year on leaks but typically pursues only a handful of these.
“Classified information leaks every day, but typically only the most serious catch the attention of Justice,” said former DOJ spokesman Matt Miller. “You have to invest a lot of resources and determine that damage was done and build a strong enough case to prosecute. It also depends on how aggressively you want to pursue these things. The most aggressive way is to subpoena reporters and make them reveal their sources, but that is a drastic step that can backfire.”
The Obama administration initially went that route by subpoenaing New York Times reporter James Risen in the trial of former CIA officer Jeffrey Sterling, who was eventually sentenced to 3 1/2 years in prison for leaking classified information. The administration changed course after a protracted legal battle with Risen and the Times.
There are other risks for the Trump administration in pursuing the leaks, as investigations can take unexpected turns.
In 2012, Obama’s Justice Department pursued an investigation into the source behind New York Times reporter David Sanger’s story about the Stuxnet computer virus’s use against the Iranian nuclear program.
That investigation, spearheaded by current Deputy Attorney General Rod Rosenstein, found that former Vice Chairman of the Joint Chiefs of Staff James Cartwright, who had been dubbed “Obama’s General,” was behind the leak and later lied to the FBI about it. Obama pardoned Cartwright earlier this year.
Some of Trump’s allies are hopeful the fountain of leaks will subside now that Trump has sent out a warning shot with the Justice Department leak review and former FBI Director Robert Mueller has taken over as special counsel for the Russia investigation.
Others say it will take jail time for offenders if the leaks are to end.
“I don’t think they’ll stop, there’s too much animosity there,” said Zakheim. “The only way it will stop is if they catch someone. Until they do, the leaks will continue.”