President Trump’s first two years in office saw a fourfold increase in criminal leak referrals to the Justice Department, and experts say a spike in prosecutions is poised to follow.
Few of the 120 suspected criminal leaks referred by federal agencies in 2017 resulted in charges, but experts say it often takes nine to 18 months, meaning arrests are likely imminent after referrals rocketed up from just 37 in 2016 and 18 in 2015, remaining high in 2018 with 88.
“I think the number of prosecutions will certainly increase in light of more investigations,” said Jesselyn Radack, a whistleblower defense attorney whose Obama-era clients included former National Security Agency contractor Edward Snowden and former agency senior executive Thomas Drake.
So far under Trump, only two journalistic sources have been prosecuted using the notoriously harsh Espionage Act, compared to eight over President Barack Obama’s eight years. Others were prosecuted under less strict laws under both administrations.
“It’s a good bet that we will start seeing in the near-term some prosecutions,” said attorney Barry Pollack, whose clients have included several prominent alleged leakers as well as WikiLeaks publisher Julian Assange, who was arrested April 11 for publishing military and diplomatic secrets in 2010.
“Knowing the emphasis of the administration on this area and knowing it takes some period of time to put together these cases, we can expect to start seeing a number of them,” Pollack said.
[Related: More of Trump’s private schedules leak as West Wing hunts down source]
Obama’s use of the Espionage Act to target leaks was unprecedented, with more journalistic sources prosecuted than under all prior administrations combined. The effort was made easier by digital footprints.
“In the ’90s, the government never would catch people. It was impossible. There was no paper trail,” said national security defense attorney Mark Zaid, who has handled several leak cases.
Newly widespread encrypted communication platforms can only go so far in protecting leak confidentiality, Zaid said, as authorities can circumvent secure platforms by accessing devices or forcing companies to hand over records.
Still, the government doesn’t always bring charges. FBI agents must determine who had access to information, then connect the leak to a suspect. Then prosecutors must decide if a case is worth pursuing, balancing factors such as whether prosecution will possibly expose even more secrets at trial.
“If they do something, it’s either something they are really pissed off about, or someone is taking it really personally,” Zaid said. “A lot of people who are prosecuted are low-level people and tend to be younger. … They choose their battles wisely.”
[Also read: Former top FBI lawyer James Baker under criminal investigation for media leaks]
Under Trump, National Security Agency contractor Reality Winner and former FBI agent Terry Albury were charged under the Espionage Act. Faced with potential decades in prison, both pleaded guilty. Winner, who leaked about Russian attempts to hack election systems, received more than five years in prison. Albury got four years for leaking documents, including a guide to informant recruitment and rules for seizing journalist records.
Separately, former Senate Intelligence Committee staffer James Wolfe pleaded guilty to lying to the FBI about contact with journalists, and Treasury Department employee Natalie Edwards was charged with leaking “suspicious activity reports” on former Trump campaign chairman Paul Manafort and others.
The latest records on leak referrals were acquired by Steven Aftergood of the Federation of American Scientists. Aftergood believes federal workers view Trump less favorably than they viewed Obama, and therefore may be more likely to leak.
“The referrals from 2017 and the resulting investigations should be ripe this year, so it’s possible that surge would bear its unhappy fruit around now, but so far we haven’t seen it happening,” he said.
Potential leak cases include the release of Trump’s calls with leaders of Mexico and Australia and a leak revealing surveillance of former Trump campaign adviser Carter Page, which House Republicans have requested be investigated.
One person prosecuted under Obama, former CIA employee John Kiriakou, scoffs at some anti-Trump leaks, saying they are designed to embarrass, rather than expose waste, fraud, and abuse.
“A lot of people are calling these White House people whistleblowers, and I think they are not,” said Kiriakou, who served nearly two years in prison for giving a journalist contact information for two colleagues linked to post-9/11 tactics critics call torture.
“A leaker leaks because it’s exciting or they want to feel important or they want to feel they are the center of attention. And that’s not what a whistleblower does,” Kiriakou said. “If the policy is to target leakers, I think that’s the correct policy.”
