Prosecution leaks ‘in the public interest’

Without leaks, the media would lose an important and even major source of information.

By JOEL H. GOLOVENSKY
FBI van in Texas (photo credit: REUTERS)
FBI van in Texas
(photo credit: REUTERS)
Leaking news is part of the system of governance in a democracy – whether with good effects or bad, whether for noble or ignoble motive, and whether we like it or not. But a recent case in the United States demonstrates that the government deliberately leaks information about criminal prosecutions as part of its policy. And now, it has admitted it.
Sunday’s Wall Street Journal article about the firing of deputy FBI director Andrew McCabe is fascinating for its revelations about internal FBI process. McCabe was fired hours before he was due to retire with a full pension, denying him many retirement benefits.
Democrats accused President Donald Trump and Attorney General Jeff Sessions of engineering this act for political reasons, accusing them of cruelty and pettiness. But as the Wall Street Journal article reveals, McCabe was fired because he lied under oath about leaking information to a Wall Street Journal reporter.
In very polite language, it was stated that the Department of Justice inspector general and the FBI’s Office of Professional Responsibility had concluded that “Mr. McCabe made an unauthorized disclosure and lacked candor when he spoke under oath.”
But most revealing for an understanding of leaks by prosecutors is the condemnation of McCabe’s leaks: the inspector general “concluded that McCabe’s disclosure of the existence of an ongoing investigation in the manner described in this report violated the FBI’s and the Department’s media policy and constituted misconduct.”
The misconduct was not the mere fact that he leaked information to the media that there was an ongoing investigation into the Clinton Fund, but rather, that he leaked information in “a manner designed to advance his personal interests at the expense of Department leadership.”
FBI officials are allowed to leak information about investigations, it seems, when “under certain circumstances if it (falls) within the ‘public interest,’” but not against the agenda of the department “leadership.”
And so we have it from the horse’s mouth: the FBI has a policy of authorized leaks about investigations, but only where it is “in the public interest,” that is, advances the purposes of the “leadership” as opposed to the interests of the individual leaker. Leaking cannot be controlled, so the government institutionalizes it and makes it a part of its normative conduct.
How should we assimilate this? Without leaks, the media would lose an important and even major source of information.
Leaks would seem good when they expose corruption or wrongdoing. But leaks can be harmful to national security or even to open and free debate within the government as to the best policies to pursue. Take the Pentagon Papers, for example. The way leaks were presented in the recent, acclaimed movie The Post, they are clearly a good thing. The Pentagon Papers revealed an internal government study which concluded, among others conclusions, that successive US administrations had pursued a war even though the leaders had been generally convinced that they could not win that war. This is an important document, to say the least.
But in the aftermath, when do you imagine another official would initiate a comprehensive, objective study to examine the basic predicates of policy? Release of the Pentagon Papers likely put an end to crucial government self-examination for decades – if not more.
One of the problems with leaks is that there is no one to weigh the relative advantages of publishing them, no one to make a serious effort at cost-benefit analysis. The courts in the US, as in Israel, feel that they must not prevent or even punish leaks because we dare not restrict freedom of the press. The media cannot control the publishing of leaks because it is part of a profit-making venture and there is an overwhelming need to beat the competition. Pride and professional self-image reinforce this pecuniary motive.
One of the traditional uses of leaks is in essence an effort to frustrate effective government. When a bureaucrat or higher official loses an internal debate on policy, he leaks the policy in a way calculated to defeat it by exposure or embarrassment. Sometimes, the very exposure renders the approved policy inoperative.
As demonstrated in the Wall Street Journal article about McCabe, another unfortunate and widely prevalent category of leaks is in the criminal justice system. In Israel, we are constantly informed by the media, often in real time, what was disclosed in a confidential interrogation conducted by law enforcement agents, which people have turned state’s witness, who is contemplating becoming a state witness, what evidence, often in specifics, has been amassed against a defendant.
Some of these leaks emanate from the witnesses, accused and their lawyers. But much must come from the police and prosecutors. This planned and systematic leaking has become a prevalent illegal tool of law enforcement! After all, wealthy or well placed defendants often come to the match with superior lawyers, PR advisers and press agents.
The police have to even the playing field. Or so they think. Hence the unlawful leaking.
Perhaps what is most remarkable about this information about the FBI’s policy on leaking is that it was reported – not leaked.
The author, an attorney in Israel and the US, is the founding president of the Institute for Zionist Strategies.