Ali Watkins, now a journalist at the New York Times, has become a household name because her former lover has just been indicted for leaking classified information to her and other journalists, and lying about it to investigators.
Watkins’ extensive confidential communications with James Wolfe, former security director of the Senate Intelligence Committee, comprise part of the evidence of Wolfe’s collusion in disseminating national secrets with which he had been entrusted. He had given her classified information that Russian spies had in 2013 tried to recruit Carter Page, who years later would play a minor advisory role on President Trump’s campaign.
The case is all the more lurid for Watkins’ public musings on Twitter, in which she debated the ethics of having a sexual relationship with a source in order to get information out of him around the same time her relationship with Wolfe began.
Journalists are not special snowflakes. The government has exactly the same power, within the constitutional strictures of the Fourth Amendment, to investigate reporters as it does to investigate anyone else who might possess evidence of a crime.
And Washington does have a deplorable culture of leaking, by which we don’t mean whistleblowing or exposing wrongdoing, but self-interested, selective releases of information designed to damage political rivals.
When the leaked information is also classified — the recent leak of an FBI informant’s identity is an example, as is information that could tip off Russian spies that the government is on to them — it might be appropriate to prosecute the leaker. In fact, failure to prosecute more often probably contributes to the careless handling of sensitive information.
The details of this specific case are still emerging, but government monitoring of journalists always merits very close scrutiny, even where it is lawful.
We commented on this same issue five years ago, when the Obama administration abused its power, monitoring 20 phone lines used by Associated Press journalists in an effort to ferret out a source for a single story involving the leak of sensitive information. By casting such a wide net, Attorney General Eric Holder inevitably rooted out many confidential AP sources in government who were completely unrelated to the leak he was trying to plug.
That case was in a different league from this one. But both cases illustrate the need for prudence when government treads near to First Amendment freedoms. Investigators should be reluctant to delve into journalists’ affairs even when it can legally be justified, unless there is no alternative.
We noted in 2013 that Holder had not followed the established protocols for such investigations involving journalists, which called for prior notification of the journalist or news organization in question, with certain exceptions. The Justice Department claims that it did follow the guidelines this time, but this is not easy to square with the fact that investigators even rummaged through her email account from college.
The need for special caution in the case of journalists has nothing to do with the benefit that journalists themselves might derive. It has to do with the fact that the freedom of the press, guaranteed by the First Amendment, strengthens the entire society, in precisely the same way the freedoms of speech and religion do. In all three cases, the scrupulous preservation of freedom usually outweighs all other considerations with only the rarest exceptions.
The reason to avoid using journalists’ data to ferret out sources is that without sources in government who are willing to talk to journalists, government transparency vanishes. Thomas Jefferson preferred the idea of newspapers without government to that of government without newspapers because even those who can neither read nor write benefit when journalism holds government accountable.
From public-spirited leakers, we learned about the deplorable misconduct and mistreatment of veterans by employees of the Department of Veterans Affairs; about National Security Agency monitoring of U.S. citizens’ phone data; about the My Lai massacre; about IRS targeting of conservative non-profits, just to name a few.
Attorney General Jeff Sessions is very likely to keep pursuing leakers, at least in cases that involve classified information. There’s no inherent legal obstacle to his doing so. And that is precisely why he must show the greatest restraint possible. The Department of Justice should not investigate journalists for the information they gather, except in the most extreme cases, and even then only as a last resort.
