The subject of leaks is very hot at the moment. It’s easy to say that Republicans are infuriated about recent leaks because they are embarrassing and hamper their ability to govern. But there is a larger question here. When are leaks warranted, and when are they not?
But first, what is a “leak.” My definition of leak is an unauthorized release of information that is not public, often it is classified. Various dictionary definitions define it as the release of secret information or just the clandestine release of information; the point of these definitions is that the information is not public. For a leak to be a criminal offense, it must be the unauthorized release of classified government information.
The release of the Pentagon Papers was a leak in the narrower criminal sense. The Wikileaks release was part classified, but mostly not. It most certainly was private.
Most of the leaks that have been talked about the past few weeks are of private information. It has not been classified.
But does that make a difference to the question of when is a leak warranted? I would answer, no.
A leak, whether of classified or merely non-public information, is warranted only when the public good requires that it be released. And when does the public good require this? When the information being withheld from the public is needed for it to judge current events, often because the public has either been lied to or not told the whole truth. If the information is classified, the bar of the public’s need to know is set much higher; it must be of critical importance.
So with that as a guideline, let’s look at recent leaks. There have been numerous leaks about the process of the Russian investigation, most regarding specific actions by the General Counsel’s office, one regarding a memo from the Trump transition team.
Regardless of the public interest in such information, in letting them have a feel for what is happening, such leaks are not warranted. They should stop. They do not move justice forward. They do nothing but feed the public’s and cable TV’s desire for a constant flow of information. It makes the actual investigation almost anti-climatic, which I don’t think is a healthy thing.
Many will disagree with me. They feel that the President’s constant misstatement, if not conscious lying, about things is so outrageous that it is imperative to counter those lies with the truth. It’s fact checking.
While I totally agree with that, I think the information used should be public information, and there generally is plenty of that available to dispute the President, even his own statements. But even if not, the point here is that this is all so much blather; no one is making any decisions or judgments based on this chatter.
Now, if someone with knowledge of an investigation feels that important information is being ignored because its truth is inconvenient, then I think the leak of the information is warranted. Because it does move justice forward; the information now cannot be ignored by those leading the investigation.
What about Comey’s release of the contents of his memo to the press through a friend. That clearly is not a leak because the release was authorized by the writer of the memo. While it is true that the memo summarized a conversation with the President, which was privileged communication, and that the President did not authorize the memo’s release, the memo clearly is Comey’s memory of the conversation. If it were a verbatim transcript of the conversation, that would be different and it would be a leak.
Given the polarized nature of our society, and the suspicion that many people have of mainstream media, it is of critical importance that the media not be drawn into an informational tit for tat. That they remain scrupulously neutral until the facts are in, at which time they can editorialize.
Ah, but what about the fact that we now have countless “news” media on cable and the internet, and they do get involved in the tit for tat. Does that leave mainstream organizations like The New York Times seemingly irrelevant if they don’t join in the fray? Aren’t these leaks scoops that they must also cover?
That’s a hard question that only they can answer.
