By Matt Ehling and Mike Kaszuba
A Freedom of Information Act (FOIA) lawsuit initiated by non-profit organization Public Record Media (PRM) has uncovered records showing that in early 2017, Department of Justice (DOJ) officials circulated a memo outlining proposed changes to the Espionage Act – a World War I-era statute that has been used to prosecute leaks of government information. The DOJ memo was distributed within DOJ’s National Security Division (NSD) weeks after the inauguration of President Donald Trump.
Under President Trump, DOJ has embarked on an a series of anti-leak prosecutions, and has also issued criminal charges under the Espionage Act for publishing – as opposed to leaking – classified information.
PRM’s lawsuit has also revealed DOJ documents detailing the techniques the department could use to investigate members of the media – most of which date from the years of the Obama administration.
Espionage Act memo circulated within DOJ National Security Division
The DOJ memo about proposed changes to the Espionage Act was circulated on April 7, 2017, and was sent from deputy assistant attorney general Brad Wiegmann to Mary McCord, then the Acting Assistant Attorney General for National Security, as well as to DOJ deputy George Toscas. In April of 2017, DOJ was led by then-Attorney General Jeff Sessions, a former United States senator who had been appointed by President Trump earlier that year.
The memo, which DOJ has not disclosed, is entitled “Memorandum for the Deputy Attorney General from David Kris, Assistant Attorney General for National Security regarding Potential Changes to the Espionage Statutes,” and is dated February 11, 2011 – a date that would place its creation during the first term of the Obama administration. David Kris left DOJ in 2011, and now works in the private sector as a principal in the Culper and Partners consulting firm.
Brad Wiegmann and George Toscas have each served DOJ in various national security capacities, including during the years of the Obama administration. Mary McCord served in DOJ’s National Security Division (NSD) from 2014 to 2017, and now teaches law at Georgetown University. On April 20, 2017, NPR News reported that McCord had announced her intention to leave DOJ in May of that same year.
History of the Espionage Act
The Espionage Act was originally passed in 1917, in response to America’s participation in the First World War. Its provisions included language that criminalized the dissemination of information intended to interfere with military activities. The statute has been amended several times since, and has most recently served as the legal basis for prosecuting leaks of government information.
The current version of the Espionage Act also prohibits persons with unauthorized access to defense information from “communicating” or “transmitting” such material if they have “reason to believe [it[ could be used to the injury of the United States.”
Since 9/11, both the Bush and Obama administrations have used the Act to charge a variety of government employees and contractors for unauthorized disclosures of classified information, including former CIA officer Jeffery Sterling and former intelligence contractor Edward Snowden.
In the wake of the New York Times’ 2005 publication of a story on warrantless wiretapping conducted by the Bush administration, then-Attorney General Alberto Gonzalez also claimed that the Espionage Act could be used to prosecute members of the press for publishing classified information, but no such charges emerged. However, earlier this year, DOJ charged Julian Assange of Wikileaks under the Espionage Act for obtaining classified military and diplomatic records, and disseminating them via the Wikileaks web site.
First Amendment advocates have long raised concerns about using the Espionage Act to prosecute individuals for publishing government information, and have warned of the impact that such prosecutions could have on press freedoms in the United States.
DOJ initially claimed to hold no responsive documents
PRM filed its FOIA request to DOJ in May of 2017 – roughly four months after the inauguration of President Donald Trump. The request sought records relating to DOJ’s possible use of the Espionage Act, as well DOJ’s use of “legal tools” (such as subpoenas) to investigate members of the news media. PRM sought records from both the Obama administration, as well as from the Trump administration.
In its initial response to PRM’s FOIA request, DOJ component NSD stated that it had “conducted a search of the files of the [NSD] FARA Office” and that it “did not locate any responsive records subject to FOIA.” PRM then filed an administrative appeal, challenging NSD’s “no records” response, noting that NSD’s small FARA Office was focused solely on issues involving the registration of foreign agents, and was unlikely to maintain records related to leak investigation policies, which were most likely housed elsewhere within NSD.
DOJ’s Office of Information Policy then instructed NSD to conduct a “further search for responsive records.” When records were not forthcoming by May of 2018, PRM sued DOJ in federal district court.
After litigation commenced, several DOJ components (including NSD) conducted searches, and disclosed a variety of Obama-era memos on the use of DOJ legal tools, but produced no records dating from the Trump administration. PRM advocated for a supplemental search of e-mails, noting that a DOJ press release about the agency’s Trump-era anti-leak initiatives indicated the likely presence of responsive records. After the supplemental search was conducted, NSD produced two additional records.
DOJ has claimed that both records – the memo on possible Espionage Act changes – as well as the e-mail to which the memo was attached – are entirely protected from disclosure by FOIA’s “Exemption Five” – a provision of the FOIA that allows government agencies to withhold records related to certain agency deliberations.
Trump discussions about leak investigations detailed in Comey testimony
DOJ documents indicate that the Espionage Act memo was disseminated to NSD on April 7 of 2017 – roughly eight weeks after President Trump was alleged to have spoken with former FBI Director James Comey about his concerns regarding leaks of classified information.
The alleged discussion between Comey and Trump is detailed in Comey’s June 8, 2017 written testimony, which was prepared for the Senate Select Committee on Intelligence. In his testimony, Comey related the contents of various exchanges between himself and the president, including a February 14, 2017 White House meeting with Trump during which the two discussed issues involving leaks.
According to Comey’s testimony, “[t]he President … made a long series of comments about the problem with leaks of classified information – a concern I shared and still share.” Comey’s testimony then stated that he subsequently “spoke with Attorney General Sessions in person to pass along the President’s concerns about leaks.”
Later in 2017, Attorney General Sessions held a press conference detailing DOJ’s initiatives to combat leaks of classified information.
A DOJ press release posted on the agency’s web site included Sessions’ remarks at the press event, quoting the Attorney General as saying “[s]oon after I arrived here in February, I initiated a review of our leak investigations and prosecutions … I have listened to career investigators and prosectors about how to most successfully investigate and prosecute these matters. At their suggestion, one of the things we are doing is reviewing policies affecting media subpoenas.” Sessions’ comments ended by stating that “[t]his nation must end the culture of leaks. We will investigate and seek to bring criminals to justice.”
Both the DOJ press release and Comey’s testimony have been cited by PRM during its FOIA litigation as evidence of the likely presence of DOJ documents responsive to its request.
Leak, Espionage Act prosecutions under the Trump administration
Since 2017, the Trump administration has engaged in a series of leak prosecutions, using a variety of investigative tools. In June of 2018, James Wolfe, a former Senate Intelligence Committee aide, was charged with giving false statements to the FBI in connection with a leak investigation. After Wolfe’s arrest, the New York Times reported that DOJ had seized the phone records of one of its reporters, Ali Watkins, who had previously been in a romantic relationship with Wolfe.
On May 9, 2019, DOJ charged former intelligence analyst Daniel Everette Hale with, among other things, transmitting national defense information and disclosing classified information. The disclosures were allegedly made to a reporter.
On May 23, 2019, DOJ charged Julian Assange of Wikileaks with a variety of violations of the Espionage Act. Notably, the charges against Assange included counts stemming from Assange’s “publishing … on the Internet” of certain documents containing classified information.
The publication-related charges brought against Assange have been criticized by press advocates as challenges to the U.S. Constitution’s First Amendment, since precedent established by the Assange case could be used to prosecute journalists who publish leaked material in news stories.
In a comment reported by CNN, John Demers – the current Assistant Attorney General of NSD – said that “Julian Assange is no journalist.”
Obama-era DOJ records disclosed through litigation
While President Trump has often had a rocky relationship with the news media, the Obama Administration had faced earlier criticism after several controversial investigations of media leaks came to light.
The Obama-era investigations had sought information from members of the press, including reporters for Fox News and the New York Times. In one case involving correspondent James Rosen, the FBI had referred to Rosen as a potential criminal “co-conspirator” in a search warrant affidavit.
Media backlash led DOJ to propose revising a series of policies outlining when the agency could use subpoenas, search warrants, court orders, or other investigative tools to obtain information relevant to leaks to the news media. DOJ disclosed several of these Obama-era policy documents to PRM during the course of its litigation. DOJ had previously released a similar set of documents to the Freedom of the Press Foundation in response to a related FOIA lawsuit.
President Obama asked for a review of DOJ’s news media policies in May of 2013, four months after he began his second term. The president asked the agency to review how and when “law enforcement tools” could be used to force news media members to turn over information in both criminal and civil investigations. Shortly thereafter, in July 2013, the DOJ issued a seven-page report.
According to the DOJ records obtained by PRM, the new policies were written to strike “the appropriate balance” between pursuing “those [in government] who violate their oaths through unlawful disclosures of information” and safeguarding “the essential role of a free press in fostering government accountability and an open society.”
Several of the proposed changes were noteworthy.
The most substantive change pertained to advance notice given to news media members regarding DOJ’s interest in obtaining information about alleged information leaks. The DOJ policy at the time stated that negotiations with news media members to obtain information they might possess could occur as long as the negotiations “would not pose a substantial threat to the integrity of [the] investigation.” This determination was to be made by the “responsible Assistant Attorney General” on the case, and was subject to later review by the Attorney General.
Under the new policy proposed in 2013, “advance notice” negotiations with the media would take place unless the Attorney General “affirmatively determine[d]” that the discussions “would pose a clear and substantial threat to the integrity of the investigation.” In addition, the new proposal would have the Attorney General solicit recommendations from a newly-created News Media Review Committee, whose members would consist of senior DOJ officials – including the department’s Director of the Office of Public Affairs.
A delay in notifying a member of the news media could go no longer than 90 days, according to DOJ records.
“It is expected that only the rare case would present the Attorney General with the requisite compelling reasons to justify a delayed notification,” the report added.
DOJ’s revised policies were also to “make clear” that DOJ officials should institute other changes, such as using computer protocols and keyword searches “to limit the scope of intrusion” into a news media member’s files.
Another change set out in the 2013 DOJ report would affect the “suspect exception” language from the federal Privacy Protection Act of 1980. The Act generally prohibits government officials from searching or seizing work product or documentary materials possessed by individuals whose job it is to disseminate information to the public. The Act also provides for a “suspect exception” relating to persons who possess “national defense” or “classified” information.
The new policy would limit the issuance of search warrants only to those cases where a member of the news media “is the focus of a criminal investigation for conduct not connected to ordinary news-gathering activities.”
In addition, the report stated the new policy would also establish a News Media Dialogue Group, which would include news media members, and would meet regularly to assess the impact of the DOJ’s new policies.
Documents obtained by PRM also showed other changes regarding investigations into the activities of news media members.
In January 2015 – also during the Obama Administration — the DOJ proposed changing its policies regarding investigating news media members under the Foreign Intelligence Surveillance Act (FISA). A DOJ memo said that a review of FISA applications “targeting known media entities or known members of the media” should in the future “occur at even higher levels than otherwise permitted,” and should be reviewed by the U.S. Attorney General or Deputy Attorney General.
Seeking evidence of Trump-era changes to Obama policies
PRM’s FOIA request explicitly sought agency records relating to deliberations within the Trump-era DOJ about “modifications or proposed modifications to DOJ policies and practices governing the use of law enforcement tools.” Such records were sought by PRM in order to understand whether the agency might move to modify the 2013-era changes put in place by the Obama administration.
In response to record searches conducted during PRM’s litigation, DOJ has represented that various agency components do not possess responsive e-mails, nor responsive records located within DOJ’s “Departmental Executive Secretariat” – the official records repository for the Offices of the Attorney General, Deputy Attorney General, and Associate Attorney General.
List of DOJ documents provided to PRM
Department of Justice Use of Certain Enforcement Tools to Obtain Information from, or Records of, Members of the News Media; and Questioning, Arresting, or Charging Members of the News Media. Annual Report: Calendar Year 2014
U.S. Department of Justice, Office of the Deputy Attorney General. Memorandum for the National Security Division RE: (U) Guidance for Processing Foreign Intelligence Surveillance Act (“FISA”) Applications targeting Known Media Entities or Known Members of the Media
Memorandum from the Attorney General RE: Updated Policy Regarding Obtaining Information From, or Records of, Members of the News Media; and Regarding Questioning , Arresting, or Charging Members of the News Media