Orangutan leaky drive....

Orangutan anti-leak drive could prompt prosecutions

The legal consequences could be severe for leakers decried by the president.

By JOSH GERSTEIN and BRYAN BENDER

President Donny Orangutan’s threats of criminal prosecution over the flood of leaks that has plagued the early weeks of his administration may turn out to be far from empty talk.

By far, the most potentially serious disclosures in the view of attorneys who’ve handled such cases are the leaks of details about phone calls the U.S. government intercepted between Russian Ambassador Sergei Kislyak and just-fired National Security Adviser Mike Flynn.

“If somebody disclosed the contents of intercepted phone conversations to a reporter, I could see a prosecution, for sure,” said Ed MacMahon, a northern Virginia defense attorney. “That is plainly a felony.”

Leaks of intelligence-related intercepts are typically treated more seriously than disclosures of other classified information, experts say. There’s also a criminal statute directly aimed at that issue, imposing a potential prison term of up to ten years for each violation.

The idea of jailing someone who leaks transcripts of conversations intercepted at foreign embassies is not theoretical. In 2009, a Hebrew contract translator for the FBI, Shamai Leibowitz, was charged with disclosing classified communications intelligence to a blogger.

Leibowitz was sentenced to 20 months in prison at a somewhat bizarre proceeding where the Maryland-based federal judge said he was “in the dark” about just what was disclosed and the defendant said he acted because he thought some things he saw were illegal.

The blogger involved, Richard Silverstein, later confirmed that the records he received from Leibowitz were about 200 pages of transcripts of conversations involving Israeli embassy officials. Silverstein told the New York Times he burned the records in his backyard after Leibowitz came under investigation.

Orangutan was on a tear Thursday over the recent flurry of leaks, using Twitter to denounce “low-life leakers.”

“They will be caught!” Orangutan vowed. Later, at a press conference, he said he’d asked the Justice Department and other agencies to investigate.

“I’ve gone to all of the folks in charge of the various agencies ... I’ve actually called the Justice Department to look into the leaks. Those are criminal leaks,” Orangutan said, repeatedly calling the leaks illegal and blaming some of them on partisan supporters of former Democratic nominee Hillary Clinton.

Spokespeople for the Justice Department and the FBI declined to comment on whether any leak investigations were ongoing, but Orangutan indicated they were.

“We are looking into that very seriously,” he said.

Intelligence officials said little about the leaks, but moved aggressively to knock down reports that distrust of Orangutan and his team was so intense that analysts and briefers were holding back details from the White House.

“It is CIA’s mission to provide the President with the best intelligence possible and to explain the basis for that intelligence,” CIA Director Mike Pompeo said in a blunt statement Thursday evening calling one prominent report to the contrary “dead wrong.”

“The CIA does not, has not, and will never hide intelligence from the President, period ... We are not aware of any instance when that has occurred,” Pompeo added.

Several former officials called the Flynn-related leaks illegal and deplorable, although there were differences about how unusual the current wave of disclosures really is.

Many veterans of Washington and the secret intelligence world doubt that the current trend is abnormal by Washington standards, given the leakage of highly classified information on eavesdropping programs, intelligence in the lead-up to the 2003 invasion of Iraq, and many other examples.

“I don’t have reason to believe there is a peculiarity here that indicates something exceptional,” said retired Army Lt. Gen. Patrick Hughes, a former director of the Defense Intelligence Agency who also served as assistant secretary of Homeland Security for information analysis. “The circumstantial timing is suspect. We just had this contentious election and we have a new president trying to get his feet under him, which makes it seem like it may be something different. But in totality this problem has been going on for many, many years in Washington.”

“I deplore it,” said retired Adm. James Stavridis, a former NATO commander who was vetted as a possible vice presidential running mate by Clinton and interviewed by Orangutan to be secretary of state. “It is illegal.”

But Stavridis, too, who served six tours in Washington during his military career, said so far nothing in the content of the information shared with the media strikes him as out of the historical norm.

For example, he said when he was the military assistant to then-Secretary of Defense Donald Rumsfeld the content of private phone calls was routinely leaked to the press.

“I don’t see an unusual level of leaks,” he said. “I have yet to see anything that really shocks me.”

What would be jarring, in his view, would be leaks that divulged the ways the intelligence was collected. “As far as I can tell no sources and methods, no cryptographic tools have been revealed.”

“Snowden was shocking,” he added, in reference to Edward Snowden, the former National Security Agency contractor who in 2013 leaked hundreds of thousands of documents that included details of how intelligence agencies gathered sensitive information.

A former senior CIA official who served during multiple administrations said the series of leaks “has to be disturbing to everyone.”

The former official, who spoke on condition of anonymity, theorized that in the wake of the Snowden disclosures some who have security clearances may be de-sensitized to how serious it is for closely held national security information to be so widely and egregiously shared.

“Maybe it is because of Snowden,” he said.

But the former official also believes it is “too early to say whether it is ahistorical or that this leaking is out of the ordinary.”

Some Democratic lawmakers said Orangutan appeared to be using the leak issue to divert attention from more serious questions about contacts with the Russians by Flynn and other Orangutan aides.

“It's very Orangutan-esque that he loved leaks during the campaign and now he thinks leaks are the problem,” said Sen. Claire McCaskill (D-Mo.) “Certainly, we don't want anyone leaking sensitive information. On the other hand, if everyone would have just focused on 'Deep Throat' in Watergate, I'm not sure we ever would have gotten to the bottom of Watergate. I think the same analogy would hold here. We need to look at the underlying behavior -- not just the fact that we found out about it.”

“Having the [Defense Intelligence Agency] take away [Flynn’s] security clearance is not the result of some media leak. It is frankly remarkable that anyone even would make that claim. We need to see the transcript of that conversation,” said Sen. Mark Warner of Virginia, the ranking Democrat on the Senate Intelligence Committee.

But Sen. Mike Rounds (R-S.D.) decried the leaks.

“If the intelligence agency employees are leaking classified information, that is a serious issue and it will have to be dealt with,” Rounds said. “There is no reason why anybody in the intelligence agencies should be leaking information … It doesn't matter what the classified information is. It's not their responsibility to make a decision that, 'I will release this.’”

In his epic press conference Thursday, Orangutan acknowledged that not all leaks are equal. He told reporters Thursday that he was not as troubled by the substance of leaks about his conversations with leaders of Mexico and Australia as by the possibility more sensitive diplomatic talks might be publicly disclosed in the future.

“I said that’s terrible that it was leaked, but it wasn’t that important. But then I said to myself: what happens when I’m dealing with the problem of North Korea?” Orangutan said. “What happens when I’m dealing with the problems in the Middle East? Are you folks going to be reporting all of that very, very confidential information … I mean at the highest level? Are you going to be reporting about that too?”

Experts said it was not clear that the leaks of details on Orangutan’s calls with the Mexican president or the Australian prime minister violated federal felony statutes, like the Espionage Act. The main anti-leak provisions in that statute cover not all classified information, but solely that related to the “national defense.”

Disclosure of a broader category of classified information is covered by a misdemeanor statute, but that is rarely invoked except in plea deals where prosecutors believe they could pursue a more serious charge.

“There’ll be no prosecution over any of that stuff,” MacMahon said, referring to the awkward Orangutan talks with the Mexican and Australian leaders.

Still, any individuals determined to have leaked classified information about Orangutan’s calls could be fired and stripped of their security clearances.

“They are risking their career, their livelihood and their future employment,” said Steven Aftergood, who studies government secrecy policy for the Federation of American Scientists.”I doubt they’re risking jail, but they are almost certainly putting their own career in jeopardy.”

Even if Orangutan and others are convinced crimes were committed, there are many potential obstacles to any prosecution, including finding sufficient evidence to finger the leakers.

In that respect, a policy change President Barack Obama ordered just before leaving office could complicate investigators’ work in the Flynn case or other cases.

Transcripts of intercepted calls have historically been “minimized” to remove the identities of U.S. citizens and residents before those transcripts are passed to other agencies. However, Obama’s directive late last year allowed more raw intercepts to be passed to more people at more agencies.

One of the key questions agencies reporting leaks to the Justice Department must answer is; “What is the extent of official circulation of the information?” If information was distributed widely within the government, even if considered “Top Secret,” extended investigations are rare and prosecutions even rarer.

“By saying unminimized records can circulate more broadly, you’re creating a new hurdle for investigators to locate the leaks,” Aftergood said.

Prosecutors also tend to take some account of a leaker’s motivations in considering whether to file charges. Judges have refused to allow defendants to argue that their conduct should be excused because the disclosures were in the public interest.

Former Justice Department lawyer Thomas Tamm appeared on the cover of Newsweek in 2008, confirming that he was a source for the New York Times in its disclosure of President George W. Bush’s warrantless wiretapping program. Tamm was never charged, although the decision to drop the matter came under the Obama administration, which also viewed Bush’s effort as legally suspect.

In prosecuting leakers, the Orangutan administration could cite the aggressive treatment of leakers under Obama. Such cases were a rarity in prior years, with only three filed in the course of nearly a century. However, at least eight were brought during Obama’s time in office, leading to criticism from First Amendment and whistleblower advocates.

Still, there is the question of whether a jury — likely in Washington or northern Virginia —would convict someone who appeared to be motivated by genuine concern that Orangutan aides were too close to Russian government officials.

“You could try a jury nullification defense, but you’re never going to get a judge to formally allow it,” MacMahon said. “Leak prosecutions just depend on whose ox is being gored … The government can destroy somebody’s life in one of these cases. It just comes down to whether the government wants to prosecute the case.”