Articles
The Volatility of the U.S. Government’s Effort to ProsecuteUnauthorized Disclosures of Information to the News Media
2019 Volume 94 Pages 73-91
Details
2019 Volume 94 Pages 73-91
This research focuses on the U.S. Department of Justice’s investigation and
prosecution of unauthorized disclosures of government information to the
media. Based on a review of 21 cases, the research shows trends in the frequency
of prosecutions.
The investigations and prosecutions by the U.S. Department of Justice
（DOJ） and the Federal Bureau of Investigation （FBI） with regard to leaks
have gone through some transition. In the 20th century, only four cases were
prosecuted. However, the situation has completely changed in this century.
Under the Obama administration, there were eight charges against alleged
leakers between 2009 and 2013. On the other hand, no such charges were filed
from October 2013 to September 2016. Despite President Trump’s pledge for
more prosecutions, there have only been five cases since his inauguration. This
has occurred notwithstanding the frequency of leaks being about to “explode.”
Several factors contribute to this volatility. Among these factors are the
DOJ and FBI’s internal codes or norms with which the investigators and prosecutors
must comply.
For example, between 2005 and 2006, the normal constraints were relaxed,
both in terms of investigative procedures with regard to the news media and
the scope of the interpretation of the substantive law, such as the Espionage
Act. As a result, the frequency of prosecutions increased between 2009 and
2013.
However, between 2013 and 2015, the constraints of investigations against
the press strengthened significantly under the direction of President Obama.
Therefore there was “downtime” between 2013 and 2016.
The DOJ serving under the Trump administration announced in 2017 that
it was reviewing policies affecting media subpoenas. The announcement can be
regarded as evidence of the fact that the change of the norms or internal codes
has played an important role in trends in the frequency of prosecutions.
