A Liberal Case Against Leaks

Printed from: https://newbostonpost.com/2017/03/03/a-liberal-case-against-leaks/

President Donald Trump’s Twitter complaints about “illegal leaks” are easy to dismiss as the latest sign of his authoritarian streak.

Plenty of people already perceive Mr. Trump as a thin-skinned would-be-dictator on a power trip. A crackdown — even a purely rhetorical one — on the press and on whistleblowers that provide transparency into Mr. Trump’s administration provides his opponents with additional evidence to confirm pre-existing fears.

But there’s a contrarian case to be made here, too. It’s worth remembering that the leaks themselves can undercut precisely the values — freedom, civil liberties, and the rule of law — of which Mr. Trump’s critics fancy themselves ardent defenders. Call it a liberal case against leaks.

If it’s law-enforcement or national security personnel who are disobeying the law by disclosing classified information or grand jury information to the press or to other unauthorized recipients, then they’ve given themselves permission to break some laws. Once that happens, where does it stop? What’s the next law the FBI agent will break? The one against perjury? The one against evidence-tampering? The one against beating up people during interrogations? The one against racially discriminatory investigations?

One might respond that that is a slippery slope fallacy. Perhaps. But it’s nonetheless hard to be totally comfortable with the idea of individual government officials having the discretion to break the law, unilaterally, completely at will, without any consequence. It’s certainly possible that that might erode their respect for law, in general.

Individuals targeted by anonymous leaks are often themselves victims, denied the due process rights they are guaranteed under the Fifth Amendment and the right to confront their accusers that are guaranteed under the Sixth Amendment. In a criminal setting, leaks may poison the jury pool, effectively depriving a defendant of his Sixth Amendment right to a trial by an “impartial jury.” In a recent string of hedge fund cases mostly concerning insider trading, leaks by prosecutors and well-publicized raids have effectively, arguably, violated the Fifth Amendment rights of hedge fund managers not to have their property taken without just compensation. In some cases the adverse publicity itself amounts to punishment without benefit of a trial.

These rights weren’t amended into the federal Constitution just to help criminals with clever lawyers get off. They embody crucial principles of fair play that go right to the heart of liberty and justice.

Finally, if American foreign policy is to advance freedom in a world full of unfree nations, leaks can be self-defeating. Think of a law professor in an authoritarian country whose career risked ruin when Wikileaks published a cable documenting his informal meeting with an American embassy official. In the case of the recently ousted national security adviser, General Michael Flynn, if one is genuinely concerned about Russia’s malevolent influence in America, do we really want the Russian ambassador in Washington to know that we are listening in on his telephone calls?

These arguments against leaks are not often aired in much detail by the press, which benefits commercially from the page views and audience generated by the leaks. In defense of the press and the leakers, I concede that in certain cases — though not in all of them — the benefit to the public gained by airing certain information outweighs the costs connected with the disclosure. It might be useful to come up with some clear criteria for those cases and write them into the law.

But it’s worth remembering, too, that leaks have costs. There are reasons that even those of us who aren’t want-to-be dictators should be skeptical of them. That’s a point often overlooked by the leakers and their defenders and enablers. 

I wish President Trump was more lucid and coherent in articulating these costs. Perhaps he will expand on his tweets in some other forum. But for now, he has done at least some good by shining a light on the issue. 


Ira Stoll is editor of FutureOfCapitalism.com and author of JFK, Conservative.