Information leaks from within the federal government led to the revelation that now-former National Security Adviser Michael Flynn spoke to the Russian ambassador about U.S. sanctions against his country soon after President Obama announced them. Flynn’s communication has led to speculation that he may have broken the law by talking to a foreign government about a dispute without U.S. authority. He was asked to resign after word got out that he lied to Vice President Mike Pence when he insisted that he didn’t discuss the sanctions with the ambassador.
But to President Donald Trump, the big story is that we know the story. Flynn was caught by U.S. intelligence officials after they wiretapped his communications with the ambassador. They also made transcripts of the conversations, but it wasn’t until that information mysteriously found its way to the Washington Post that anyone knew about it. On Twitter and in public statements, Trump has railed against the leaks, which the Post has only attributed to “current and former U.S. officials,” and heads will roll if he learns who’s behind them. As it turns out, the law is on his side. However, these leaks are notoriously hard to prosecute and are rarely pursued. But, if there are, here’s what could happen to the culprits.
First, there’s the prohibition against disclosure of classified information. This is the obvious one, since any publication of classified material to an unauthorized party is illegal. Under the Espionage Act, 18 U.S.C. § 798, a person guilty of this can end up in prison for 10 years and face a fine. If the leaks involved classified information that was sent to members of the press, the source could end up behind bars if they’re caught. Opponents of Hillary Clinton argued that she violated this with her handling of emails on a private server, but the FBI determined they did not have a strong enough case to prosecute. As LawNewz.com contributor Philip Holloway wrote, the information regarding Flynn’s wiretapped phone calls is Signals Intelligence (SIGINT), which is highly classified, so if one of the “current and former U.S. officials” is identified, they could be in trouble.
The form of the leaks could also determine whether additional charges appropriate. If information was merely spoken to a reporter, that’s one thing, but if actual files or physical materials were transferred, then 18 U.S.C. § 641 could kick in. That law says that anyone who steals or provides for another person’s use “any record, voucher, money, or thing of value of the United States or of any department or agency” is guilty of a crime. If a source of a government leak turned over a physical record, they could face 10 years in prison and a fine for it.
In addition to laws against revealing certain information, if the President discovers a source behind a leak, they could face additional charges if they lie about it. Besides perjury, which applies to anyone who lies under oath, false statements or covering up material facts in a federal investigation, either by the Department of Justice of Congress, can lead to five years in prison.
However, one thing to keep in mind is how rare these type of prosecutions are. Of all prior administrations, President Obama was the most aggressive when it came to prosecuting leakers. According to a report from the Committee to Protect Journalists, six government employees, plus two contracts including Edward Snowden, were the targets of felony criminal prosecutions for leaking information. Prior to Obama, there were only three such prosecutions in history! And the prosecutions themselves are no easy task. For example, Jeffrey Sterling, a former CIA employee, was charged under the Espionage Act and it took the feds five years to get a conviction. Sterling was sentenced to 3 1/2 years behind bars. The case involved a seven year legal fight over whether James Risen, a New York Times reporter, would be forced to identify his confidential sources and testify.
Of course, none of this matters if Trump doesn’t discover any of the sources behind the leaks. Lately, that seems to be the only information not getting out of the White House.