This article was first published in The Intercept.
New data obtained by The Intercept adds considerable detail to what we already know about former President Donald Trump’s relentless campaign against whistleblowers and leakers in the intelligence community. The Trump administration referred far more media leaks for criminal investigation each year than any of the previous 15 years, with the CIA accounting for the vast majority of such leaks, according to a trove of records released by the Department of Justice to the independent watchdog groupProject On Government Oversight, or POGO, in response to a Freedom of Information Act lawsuit.
The DOJ records provide a previously unavailable level of detail on media leak referrals, including the originating agency, the date of the referral, and the classification level of the suspected disclosure. The records also show the CIA accounting for more than 64 percent of all referrals. The next most common agency, the National Security Agency, accounted for just 15 percent. The documents reveal a dramatic spike in the number of such leak referrals — called “crime reports” — from the CIA in 2017, when Mike Pompeo led the spy agency. Many of those referrals pertained to leaks that had taken place months and even years prior during the Obama administration, raising questions about why they were being revisited.
As The Intercept has previously reported, in 2017 the number of criminal leak referrals spiked to 120 — much higher than any other point since 2005. The number of referrals to Trump’s Justice Department in 2018 was 88, with 71 in 2019, still considerably higher than the years before Trump became president. In the first three quarters of 2020, there were 55 referrals. More than twice as many leak referrals were sent to the Justice Department during the first three years of the Trump administration than in any other three-year period in the last decade-and-a-half.
There are likely several reasons for the CIA’s outsize presence in the leak referrals, some more benign than others, according to current and former national security officials not authorized to speak publicly.
A former CIA official pointed to the sheer frequency of leaks directly related to the Russia investigation. Media leaks about the Russia investigation were so commonplace that the former CIA official, upon being notified of one such leak in spring of 2017, recalled a senior CIA counterintelligence manager remarking, “Well, that’s another referral.”
The WikiLeaks publication of an archive of hacking tools used by the CIA in 2017 may have comprised a portion of the referrals. Several of the publication dates appear to align with referral dates from the CIA.
The former CIA official also pointed out that the agency simply produces so much “originating” intelligence — i.e., intelligence on which subsequent intelligence reports produced by other agencies are based — that leaks could appear to come from the CIA that might in fact have come from other entities using its intelligence. For example, the former CIA official recalled agency officials being in broad agreement that the leaks were largely coming not from Langley but from the House Intelligence Committee, which had access to CIA intelligence as part of its oversight duties. Other explanations for the relative prominence of the CIA in the leak referrals include, as one former senior FBI official who worked on leak cases bluntly put it, “The CIA fucked up the [Aldrich] Ames case so bad” that the embarrassing spy scandal resulted in the FBI’s permanent presence in the CIA’s counterintelligence center. And while the military could contribute referrals, it much prefers, as a senior Pentagon official put it, to keep leak investigations within the military justice system. However, these factors do not account for the rise of referrals under Trump.
Amid recent revelations of the Trump administration’s efforts to obtain the communications records of reporters from CNN, the New York Times, and the Washington Post, the new DOJ documents reveal the most complete picture yet assembled of a leak-hunting effort that dwarfs those of previous administrations. In the recently revealed cases, gag orders prevented news executives and tech companies from revealing the secret subpoenas. In May, President Joe Biden announced that he would not permit the seizure of reporters’ records, apparently unaware that his own Justice Department was attempting to do just that and had obtained a gag order against the New York Times. After it was lifted, the Biden White Houseclaimed that it knew nothing about the Times gag order, and the Justice Department soon announceda new policy regarding reporters in leak investigations.
“We need a full accounting of what happened in these three cases, and we need to know how these three secret record seizures are linked to the 2017 anti-leak initiative,” said Gabe Rottman, a program director at the Reporters Committee for Freedom of the Press. Rottman has beentracking the government’s attempts to prosecute sources and spy on journalists.
Although only some leak referrals lead to investigations, and a small fraction are likely to result in criminal charges, the raw number of referrals under the Trump administration could mean that more prosecutions will eventually emerge. But even without a formal prosecution, a government investigation can seriously impact a federal employee’s personal and professional life and cost a considerable sum in defense attorney’s fees — and chill others from disclosing information.
While the government redacted large swaths of information in the records, including the names of the news articles associated with each suspected disclosure, we were able to identify some articles that generated referrals and some that likely did. Some referrals have led to indictments, and several seem to line up with the prosecutions during the Trump administration of Reality Winner, Terry Albury, Daniel Hale, and Henry Kyle Frese.
From the beginning of his presidency, Trump made no secret of his animosity toward the press and his eagerness to prosecute suspected leakers. “I’ve actually called the Justice Department to look into the leaks,” Trump said during a February 2017press conference. “Those are criminal leaks.”
InJuly 2017, he said, “I want the attorney general to be much tougher on the leaks from intelligence agencies, which are leaking like rarely have they ever leaked before at a very important level.”
Attorney General Jeff Sessions obliged,announcing in August 2017 that “referrals for investigations of classified leaks to the Department of Justice from our intelligence agencies have exploded” and “since January, the Department has more than tripled the number of active leak investigations compared to the number pending at the end of the last Administration.”
Sessions elaborated further in a November 2017 congressional hearing that there were 27 investigations open at the time versus nine investigations opened into media leaks over the last three years under President Barack Obama. In 2017, the FBI also created amedia leaks unit to deal with “the complicated nature of — and rapid growth in — unauthorized disclosure and media leak threats.” The media leaks unit was largely focused on leaks relating to special counsel Robert Mueller’s investigation into Russian interference in the 2016 election, according to the former senior FBI official.
In April 2019, Sessions’s successor as attorney general, William Barr, staged a news conference on the Mueller report in which he again explained how much animus Trump continued to hold toward insiders who disclosed information to the press, especially in relation to the Russia investigation. Referring to actions by Trump that were described in the Mueller report as potential examples of obstruction of justice,Barr said that “the president was frustrated and angered by a sincere belief that the investigation was undermining his presidency, propelled by his political opponents and fueled by illegal leaks.”
On at least 123 occasions during his presidency, Trump tweeted or retweeted messages decrying leakers.
Trump’s obsession with leakers was not lost on his subordinates. On January 12, 2017, eight days before Trump was inaugurated, then-Rep. Mike Pompeo, R-Kan., testified before the Senate Intelligence Committee as it considered his nomination for CIA director. Facing a question from Sen. Angus King, I-Maine., regarding “media reports that there were contacts between the Trump campaign and the Russians,” Pompeo quickly pivoted, responding, “There are a number of very serious things that have taken place. The leaks that have occurred as well I consider to be intensely serious, too.”
In his first press interviewafter being confirmed as CIA director, in July 2017, Pompeo signaled that combating leaks was a high priority. He told theWashington Free Beacon that “the media’s insatiable demand for leaks presents enormous risks to the United States of America.”
“I am confident that this administration is going to do its level best, once the secrets are out, to identify those who did them,” Pompeo said.
This wasn’t just rhetoric. The CIA under Pompeo’s leadership sent a torrent of criminal leak referrals to the Justice Department regarding news stories that the agency believed relied on classified information. In 2017, the CIA sent 75 media leak crime reports to the DOJ — far more than any other year stretching back to 2007.
Yet a deeper look shows that, in a shift from normal CIA practice, most of the CIA’s media leak referrals under Pompeo were based on alleged leaks that had occurred during the Obama administration.
Over the 10 years prior to 2017, 93 percent of the CIA’s referrals to the Justice Department occurred in the same year that the CIA opened a file on a suspected leak to the press. In 2017, that only occurred 41 percent of the time, suggesting that the agency conducted a look-back investigation under Pompeo to identify leaks.
While he could not speak to referrals from the CIA specifically, David Laufman, a former Justice Department official, said in an interview that “it did seem to me that in response to the White House’s pressure to crack down harder on leaks, there was a surge in referrals, and that surge was accompanied by what can fairly be described as a higher percentage of weak referrals that did not merit even a recommendation to open an investigation.”
When agencies send referrals to the Justice Department, the department requests that they answer11 questions to help it assess whether an investigation should proceed. The list includes questions such as whether the published material is true and whether it could be declassified for use during a prosecution. As a result, an investigation could indirectly confirm that a news story is true, and a prosecution could end up leading to more public revelations. These are potential disincentives for the government to investigate and prosecute.
Most of the older media leak cases the CIA sent to the Justice Department in 2017 were originally opened by the spy agency in 2016, though some dated to 2014 and 2015. Generally, older cases are more difficult to prosecute since the memories of witnesses and suspects often fade and evidence can be harder to obtain.
In April 2018, Pompeo became secretary of state. Within months, his senior aides launched leak investigations after news stories emerged detailing internal deliberations within the State Department, according toreporting by Axios, despite the fact that the information at issue was not classified. “The unauthorized release of information, whether it’s classified or not, is always a concern of the State Department,” Pompeo’s spokesperson said.
The records released to POGO show no criminal referrals from the State Department during the Trump administration, and in 2018 and 2019, the CIA shifted back toward the norm of sending media leak referrals to the Justice Department during the same year that the agency opened a case on the suspected classified leak.
The CIA declined to comment.
A Constitutional Collision
The political pressure on the Justice Department was acute. Investigators in the DOJ’s Counterintelligence and Export Control Section, the focal point for the government’s criminal leak efforts when classified information is involved, reported frequent high-level meetings regarding leaks.
The Justice Department was “pursuing leak investigations with considerable vigor,” but under the Trump administration, “the climate for undertaking this work certainly intensified,” said Laufman, who supervised the Justice Department’s investigations of media leaks from late 2014 through early 2018.
Although he does not condone the unauthorized disclosure of classified information to the press, Laufman said the tension between protecting First Amendment activity and national security secrets is a “classic collision of two separate and important constitutional interests” that can be difficult to navigate even in normal times.
Laufman emphasized that he did not recall any circumstances during his time at the Justice Department in which there was any pressure to overrule the assessment of a career attorney in a case involving the unauthorized disclosure of classified information to the press. “We did not alter our standards for evaluating these referrals and for assessing whether investigations should be opened,” he said. “I have high confidence that career attorneys at the National Security Division — the line attorneys and their supervisors — who evaluate leak referrals and their prosecutorial merit will not allow political considerations to intrude on their work.”
“The drumbeat of complaints about leaks from the president and other senior officials may have incentivized agencies to file more criminal referrals with DOJ about suspected leaks.”
But it seemed to Laufman that the agencies were eager to demonstrate that they were “on the team” in supporting the administration’s crackdown on leaks.
And political appointees, who generally want to please the White House, can influence the makeup of cases that go before the Justice Department’s career prosecutors who investigate leaks. “It appears that in many agencies, politically connected appointees exercise substantial control” over what leaks get referred to the DOJ, according to Columbia Law School professor David Pozen, who published astudy of leaks in the government in the Harvard Law Review in 2013. And given that the DOJ often consults with the agency referring the matter over whether an investigation is warranted, “the referral process can give an effective veto to the leadership of critical agencies,” Pozen wrote.
“The drumbeat of complaints about leaks from the president and other senior officials may have incentivized agencies to file more criminal referrals with DOJ about suspected leaks, including many that in the past might have been ignored or handled administratively within the agency,” said Steven Aftergood, an expert on government secrecy with the Federation of American Scientists who has previously obtained aggregate numbers of referrals.
The National Security Division of the Department of Justice did not respond to a request for comment.
Digital Disclosures and Electronic Evidence
Trump’s war on leakers was not without precedent. The Obama administration wasseverelycriticized for its increased prosecutions of people for giving the press sensitive information. Obama’s crackdown received broadsupport from the national security establishment.
A handful of the referrals in the new FOIA records appear to correspond with the publication of material that former Army Pvt. Chelsea Manning provided to WikiLeaks and that former NSA contractor Edward Snowden provided to journalists. Those episodes showed that digital technology empowered insiders to rapidly download and distribute vast numbers of government records — a far cry from the days of Daniel Ellsberg and Anthony Russo, who photocopied thousands of pages of the Pentagon Papers and then had to physically transport that multivolume secret history of the Vietnam War.
On February 22, 2010, four days after WikiLeaks published its firstState Department cable regarding Iceland, which was provided by Manning, the State Department made one of its only criminal referrals in the period between 2007 through 2019. And on June 6, 2013, the same day The Guardian published itsfirst story based on NSA records leaked by Snowden showing how surveillance programs were scooping up huge amounts of information on Americans’ communications, the NSA made two criminal referrals to the Justice Department.
These bulk leak cases, in which large numbers of secret government documents were disclosed,particularlyangered many in Congress and the national security establishment. They led to Espionage Act prosecutions, including the successful conviction of Manning. Snowden left the U.S. before his role in disclosing the records became public and currently resides in Russia, out of reach of U.S. law enforcement agencies.
Using the Espionage Act to prosecute journalists has generally been a line that the Justice Department has been wary of crossing. In 2010, former CIA case officer Jeffrey Sterling was indicted under the act for allegedly leaking to reporter James Risen, then at the New York Times, for material published in his book “State of War.” Risen refused to testify against or reveal his source and faced prison time as an alternative. The Obama administration renewed the Bush-era subpoena but eventually dropped the case, establishing a precedent that worried many in the press freedom world. In 2019, the Justice Department charged the head of WikiLeaks, Julian Assange, with violating both the Espionage Act and an anti-hacking law for agreeing to help Manning crack a Defense Department password.
Other referrals in the FOIA records seem to line up with articles that have not yet led to indictments. For instance, less than a month after USA Today disclosed new details of a massive secret warrantless surveillance program conducted by the Drug Enforcement Administration, the DEA sent a criminal referral to the Justice Department in May 2015 — the only one it filed from 2007 through the end of 2019. The USA Today story noted that part of the intelligence program it exposed “remained classified.”
Unlike in the case of Manning or Snowden, who each single-handedly provided vast numbers of records, USA Today’s reporting relied on interviews with more than a dozen current and former government officials, and the broad outlines of the DEA program, which had been shuttered, had been previously reported.
While technology has made bulk disclosures by people like Manning and Snowden possible, it has also made investigations of leaks easier, said Paul Rosenzweig, a former federal prosecutor. Agency computer systems log when users access or print out documents, and video surveillance systems track employees’ physical movements at work. Such insider threat programs gained steam under Obama, especially after theManning andSnowden disclosures, and superchargedagency electronic monitoring efforts. The ability to pinpoint people’s locations through their cellphones; the ubiquity of email, social media, and other forms of digital communication; and the electronic trails left by web browsers have made formerly difficult leak investigations much easier. “All the things that are making it easier to track dissidents, to people buying diapers at Target, to tracking spies … those tools can be used to unravel who’s leaking and their journalist contacts,” said Rosenzweig, who co-edited a 2015 book on whistleblowers.
Agencies have been quick to defend the insider threat programs as crucial to national security, but these surveillance programs, and the prosecutions arising from them, oftenconflate whistleblowers who expose government wrongdoing with terrorists and spies. As a federal watchdog warned in 2018, theythreaten to chill lawful whistleblowing and investigations into corruption and other government wrongdoing.
Although criticism of the Obama administration’s crackdown had been mounting for years, it boiled over in 2013, when one especially alarming leak investigation came to light. Bipartisan outrage prompted Obama’s Justice Department to take steps to scale back its aggressive criminal enforcement of media leak cases.
During April and May 2012, the Justice Department and FBI secretly wiretapped more than 20 Associated Press phone lines. Although the department never explained why it wiretapped the phones, on May 7, 2012, the Associated Press published a report on how U.S. intelligence foiled a planned terrorist attack on civilian airlines using bombs hidden in underwear. Although an investigation was already underway, the AP’s story led the CIA to file a media leak crime report with the Justice Department, according toReuters.
The wiretapping became publicly known the next year. Around this same time, news also broke that Obama’s Justice Department had described a Fox News reporter as an unindicted “co-conspirator” in an Espionage Act case in a court filing.
“These new revelations suggest a pattern of intimidation by the Obama administration,” said Rep. Eric Cantor of Virginia, then the Republican majority leader in the House.
The criticism led the Justice Department to shift its posture. AJuly 2013 report by Attorney General Eric Holder said the DOJ “will work with others in the Administration to explore ways in which the intelligence agencies themselves, in the first instance, can address information leaks internally through administrative means, such as the withdrawal of security clearances and imposition of other sanctions.”
A shift appears to have occurred. The new FOIA records show a decrease in media leak referrals to the Justice Department in the last two years of the Obama administration, particularly from the CIA.
But that didn’t mean prosecutions and investigations were off the table. Though fewer in number, cases continued to be referred, and ongoing investigations continued, some which were years in the making.
One such Obama-era investigation zeroed in on retired Marine Corps Gen. James Cartwright, who was sometimes called Obama’s “favorite general,” for the disclosure of classified information to New York Times reporter David Sanger and Newsweek’s Daniel Klaidman regarding a covert cyberattack on Iran’s nuclear program.
Two weeks after Klaidman published anarticle on February 13, 2012, the NSA sent three referrals to the Justice Department alleging that “Top Secret Codeword” information had been disclosed to the press, according to the records POGO obtained. A week after the Times’s Sanger published an article on June 1, 2012,Holder assigned the case to Rod Rosenstein, a U.S. attorney whose jurisdiction in Maryland included the NSA.
Four-and-a-half years later, in October 2016, the Justice Department issued apress release announcing that Cartwright had pleaded guilty to lying to federal agents in connection with the unauthorized disclosure of top secret information to journalists.
The case against Cartwright — andanother against former CIA director David Petraeus — was among the very few leak investigations against top officials that led to criminal charges. Manycommenters have remarked on the disparity in treatment between lower-level employees who disclosed concerns who were prosecuted and the widespread impunity for senior appointees who leaked seemingly self-serving information. In one case, a top Obama appointee released classified materials to the filmmakers of “Zero Dark Thirty,” which dramatized the manhunt for Osama bin Laden and portrayed the Obama administration in a positive light. A McClatchy storyreported that the Pentagon sent the Justice Department a referral in September 2012, which the records obtained by POGO also show. The case against that official did not lead to an indictment.
“The Justice Department’s internal investigations are designed to serve the department’s own interests and the interests of its high-ranking officials,” said Mike Zummer, a former FBI agent and founder of Protect the FBI, a whistleblower advocacy group. “Thus, DOJ internal investigators cover up wrongdoing by higher-level officials — unless under external pressure from the media or Congress — while they abuse their authority to intimidate lower-level employees and keep them from exposing embarrassing department misconduct.”
The Cartwright case held some promise that there might not be impunity that time around. “People who gain access to classified information after promising not to disclose it must be held accountable when they willfully violate that promise,” said Rosenstein in an October 2012 statement.
Three days before Trump’s inauguration — and on the same day Cartwright was scheduled to be sentenced — Obama pardoned Cartwright. Obama also commuted Manning’s 35-year sentence, which many had criticized for being excessively harsh, after she had served seven years.
Shaping Public Perception
The full effects of the Trump administration’s crackdown on leaks of classified information may not be realized for many years. Many cases that led to indictments under Obama — such as that of NSA whistleblower Tom Drake — began when George W. Bush was president and took years to investigate. And recent revelations of the Trump administration’s attempts to seize journalists’ digital communication records and call records connected to members of Congress are leading to calls for more transparency and accountability, with the Justice Department’s inspector generallaunching a review.
All governments attempt to manage and manipulate public opinion and perception, and perhaps nowhere is a president’s power to shape public awareness more powerful than in the realm of national security.
“The purpose of the national security classification system is to protect national security from the damage that could result from disclosure of certain types of highly sensitive information — such as pending military operations, identities of intelligence sources, advanced weapon technologies, and so on,” said Aftergood, the Federation of American Scientists expert. “But the power to classify information, which is largely rooted in presidential authority, also implies the ability to shape and influence public awareness.”
“We need to perceive reality as accurately as possible. Sometimes leaks can help.”
Unauthorized disclosures to the press thus threaten to undermine the control the president and top political appointees have in that system. The desire to wield total control is why the Justice Department has for decades fought against legislation that would allow whistleblowers to go directly to Congress with classified information. Ironically, the lack of adequate whistleblower protections actually incentivizes unauthorized leaks.
“In a democratic country where the government is elected by its citizens, the contest for public support can easily become a battleground, and classification — or selective disclosure — can be a potent weapon,” Aftergood said. “So it’s really fundamentally important that classification be practiced sparingly and with as much integrity as possible.”
This need is compounded in an era awash withwell-funded, deliberate political misinformation. Yet it’ll be harder to know if the government is lying or otherwise obscuring the truth if knowledgeable voices on the inside are silenced partly by the fear that they’ll face criminal investigation for revealing information that in many cases shouldn’t be secret at all.
“Things can be complicated, and we need to perceive reality as accurately as possible,” said Aftergood, who has studied government secrets for nearly three decades. “Sometimes leaks can help.”
Update: July 30, 2021
This article has been updated to include a reference to WikiLeaks’ 2017 publication of CIA documents.
Correction: Aug. 2, 2021
This article has been corrected to identify Angus King as a senator from Maine, not Massachusetts.