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What is the Scope of the Leak Investigations?

Jack Goldsmith
Saturday, June 9, 2012, 6:51 AM
The scope of the leak investigations announced by Attorney General Holder yesterday remains unclear.  Holder appointed U.S.

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The scope of the leak investigations announced by Attorney General Holder yesterday remains unclear.  Holder appointed U.S. Attorneys Ronald Machen and Rod Rosenstein to “direct[]separate investigations currently being conducted by the FBI.”  But he did not say what those investigations are about, and there have been so many leaks in recent weeks that the matter is unclear.  According to the New York Times, DOJ was silent on the subject matter of the investigations because revealing their subject matter “would implicitly confirm that certain reports contained accurate classified information.”  However, the Wall Street Journal reports that the two relevant FBI leak investigations concern (1) “leaks about the cyberattack program” and (2) “leaks about a double agent who infiltrated al Qaeda's Yemen affiliate.”  If the WSJ is right, it would appear that the investigations do not concern leaks about drone attacks and related matters that, like leaks about the Iranian cyber-operation and the AQAP infiltration, have been the subject of recent congressional complaint.  That would make the leak investigations relatively narrow, and would be relatively good news for the White House since, according to Daniel Klaidman’s book and other indications, some White House officials have participated in disclosure of some of the classified information related to drone attacks.  It will be interesting to learn (if we do learn) the precise terms of the Holder assignment to Machen and Rosenstein.  If my surmise about the scope of the investigation is right, it will also be interesting to see whether political pressure grows to extend the investigations to cover leaks related to classified information about drones. I am very skeptical that these investigations, whatever their scope, will result in criminal prosecution – at least for leaking, as opposed to obstructing justice, false statements, perjury, and the like (which is what Patrick Fitzgerald went after Scooter Libby for during the Plame leak investigation).  It is hard to discover leakers without access to journalists’ testimony or notes (which are hard to obtain).  And it is practically impossible for the government to prosecute someone for leaking information about ongoing national security operations without disclosing much more sensitive national security information (including official acknowledgment of covert actions) – something the government invariably wants to avoid.  Still, the leak investigations can result in administrative sanctions (including firings).  And the investigations can be hugely disruptive and distracting for those who are the subjects of the investigation, even if nothing ultimately comes of them.  This latter point is why the scope of the investigation is so important – to the White House and to the national security bureaucracy more generally. A final point about the importance of scope: Certain branches of the Justice Department have access to relevant classified information and thus may be the subject of investigation, or at least recused because of a potential conflict of interest.  According to Politico, parts of DOJ’s National Security Division have been “recused from one of the investigations because officials there had access to some of the information that was allegedly leaked.”  I expect that access within several components of DOJ to relevant classified information, combined with the many leaks about drones, will lead to intense political pressure to expand the investigation and to make it more independent through the appointment of a special counsel who "shall not be subject to the day-to-day supervision of any official of the Department [of Justice]" -- a move that, by regulation, is appropriate when DOJ itself has a conflict of interest.

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

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