Monday, February 20, 2017

Why The White House Is Leakier Than Trump Tower

By Noah Feldman
The Bloomberg View
February 20, 2017

President Donald Trump has threatened to prosecute leakers and bring in an outsider to review the intelligence agencies after reading unfavorable stories about his administration day after day in the news media. But he’s learning the hard way that there isn’t much he can do to stop government leaks.

That may surprise Trump, because in the private sector, the tools to stop leaking are generally pretty effective. It’s an anomaly of the legal system that in government, where the stakes are arguably higher than in business, it’s easier to get away with leaking.

You would think that criminal prosecution would be enough to deter government leaking. And if the leaked material is classified, leakers can go to prison. Both the George W. Bush and Barack Obama administrations aggressively went after classified leaks, convicting officials as prominent as vice-presidential adviser I. Lewis “Scooter” Libby and ex-CIA officer Jeffrey Sterling.

The trouble is that figuring out who leaked and getting them convicted is surprisingly difficult. Journalists are prepared to face contempt charges to protect sources. Serving jail time is even a badge of honor to reporters, a symbol of their commitment to the journalistic ethic of protecting a source. Even if the prosecution can show that a source and a reporter were in touch, it’s tough to prove the leak beyond a reasonable doubt without the reporter’s testimony or notes.

The criminal prosecution of leaks is also politically costly. It makes the administration look petty and vindictive. It typically creates a public standoff between the heroic journalist and the scary government, a story line that rarely redounds to the credit of the prosecution.

The result is that even zealous administrations don’t bring too many leaking prosecutions -- which in turn lets leakers know that the odds of being sent to prison are vanishingly small.

When the content of the leaks isn’t classified, the only option the government has is to fire the leaker. That’s a deterrent, but not a huge one.

In contrast, private employees typically sign nondisclosure agreements that subject them to civil damages for unauthorized leaks. That could include holding the leaker liable for the harm suffered by the company as a result of the leak. It could also include fines specified in the agreement.

Regardless, what that means is that a private employee who leaks runs the risk of becoming a defendant in a lawsuit. That’s extremely expensive, as the defense alone could be bankrupting. And losing would mean financial ruin for most defendants.

The employer would still have to prove that the nondisclosure agreement was violated. But it can be easier to trace private leaks than public ones, partly because employers don’t have to respect Fourth Amendment search rights like the government does.

Does it make sense for government leaking to be easier than private leaking? Generally, the public does have a greater interest in knowing the inner workings of the government than it does in knowing facts that corporations want to hide. That’s a reason to think the difference makes some sense.

What’s more, the civil penalties in nondisclosure agreements may be set too high. We might benefit from more corporate whistle-blowing.

Yet the truth is that the consequences of government leaks can also be tremendously costly -- and criminal prosecution plus firing are pretty blunt instruments for preventing those leaks. Civil enforcement, with financial penalties attached, can be a more finely honed tool for prevention. Used correctly, not excessively, it can create incentives for people entrusted with secrets to keep them under lock and key, where they belong.

One obvious-seeming solution would be to make public employees sign nondisclosure agreements that would subject them to civil penalties, just like private employees. Nothing in the Constitution would make that illegal, provided it didn’t chill employees’ free speech when they aren’t acting in their official capacities.

In practice, however, government employees’ unions would protest and probably make the change impossible.

Private sector employees are, in theory at least, compensated for signing the nondisclosure agreements through higher pay. The government wouldn’t want to pay that premium. So the unions would have a reasonable objection if they said the government wanted to be able to sue its employees without offering anything in return.

The upshot is that Trump is going to have to live with the leaks. That’s poetic justice for a president who benefited from leaks in his campaign. And it’s a reminder that government doesn’t always work with the efficiency of the private market -- even when the Constitution would allow it.

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