Are leaks about Russia contacts 'illegal,' as Trump says?

Amid a slew of reports suggesting improper contact between members of President Donald Trump’s inner circle and Russia, Trump says the media is missing the real problem: leaks.

"Illegal" leaks, to be specific.

Trump confusingly said that the "leaks are real" but "the news is fake" in a Feb. 16 press conference. He added that he’s asked the Justice Department to look into the "criminal leaks."

What’s at stake is whether Trump administration officials have been having secret talks with Russian officials. Based on leaked information, the Washington Post reported that former national security adviser Gen. Michael Flynn may have lied to the FBI about his communications during the transition period with the Russian ambassador to the United States. That disclosure led to Flynn’s resignation. The New York Times, also relying on unnamed sources, reported that Trump’s campaign advisers had regular contact with Russian officials. And the Wall Street Journal and Mother Jones reported that U.S. intelligence officials have limited the information they provide to Trump, presumably because they distrust the administration.

Trump has said these reports amount to a "whole Russia scam" that ignore the bigger story of "illegal leaks."

Are they illegal?

There isn’t a single law that criminalizes all leaks of classified or privileged government information to the media. However, there are a few relevant federal laws that apply to the kind of leaks that are of most concern to the Trump White House — those that involve details of ongoing federal intelligence investigations.

"The bottom line is that it is quite likely that eager prosecutors could find a statute to cover most leaks relating to intelligence activities," said Mary-Rose Papandrea, an expert in national security leaks and law professor at the University of North Carolina.

(Lawfare’s Susan Hennessey and Helen Klein Murillo published a much more detailed list of all the laws related to leaking in this Feb. 15 article.)

The most relevant law is the Espionage Act, which bans transmitting or communicating information "relating to the national defense" if the leaker believes the information could be used to harm the United States or aid a foreign nation.

While it doesn’t explicitly criminalize giving classified information to the media across the board, "the Espionage Act is broad enough that it comes close to having that effect," said Heidi Kitrosser, a University of Minnesota law professor and expert in government secrecy. Details of an ongoing intelligence investigation are almost always classified, so leaking that information would "most likely" violate the Espionage Act.

The terminology in the Espionage Act is also notoriously vague, Papandrea said. Information about Flynn’s conversations with Russia, for example, could arguably fall under the umbrella of "relating to national defense," classified or not.

The Espionage Act is so broad, Kitrosser said, that "that there is nothing remotely unusual about a Washington leak that technically violates the act," including intentional leaks that reflect favorably on the White House.

"Indeed, every day, major newspapers publish stories that technically violate the Espionage Act," she said.

There’s also 18 U.S. Code § 798, which criminalizes making some types of classified information public, if that information could harm the United States or aid a foreign nation. This law mainly covers classified information related to intelligence communication tools.

Regarding the current news about Trump’s possible Russia ties, Papandrea said she hasn’t seen any leaks that appear to violate section 798.

The government occasionally relies on another law, 18 U.S. Code § 641, to prosecute leaks. Section 641 criminalizes stealing, selling and giving away records that belong to the government. But not all courts have agreed that this statute applies to giving the media information contained in a government record, as opposed to physically stealing a document, which would almost certainly fall under the statute.

Papandrea said there’s significant debate among scholars over whether it’s even constitutional for these statutes to apply to leaks to the media, which is a question the Supreme Court has yet to weigh in on. For example, in a case where a leak to the media violates one of these statutes, but the leak exposes illegal government activity, the public’s right to know might outweigh the government’s interest in keeping the information secret.

Despite this patchwork of statutes that make many leaks unlawful, leaking "happens all the time and is largely tolerated," said David Pozen, a law professor at Columbia University and an expert in national security and information law.

"Across administrations, the overwhelming majority of potentially unlawful government disclosures have not been prosecuted, or even seriously investigated, in the United States, for reasons both noble and base," he said.

Some perspective: Former President Barack Obama’s administration used the Espionage Act to prosecute people who leaked to the media more than all previous presidents combined — including charges against Edward Snowden, who stole and leaked information from the National Security Agency, and Chelsea Manning, who used WikiLeaks to publish files stolen from the Army.  

Still, both Papandrea and Kitrosser said the volume of leaks under Trump so far seems unusually high, possibly indicative of discord within the administration.

Papandrea added that Trump’s public railing against the leaks might be saber-rattling in order to deter future unwanted disclosures.

"Given the controversies surrounding many of President Trump's initiatives, it is not entirely surprising that we are seeing a lot of leaks," she said.