Leaks of sensitive government information happen all the time—and some would say leaking is a virtuous thing that promotes better transparency. But there are serious ramifications. On this episode, we look at how leaks typically happen, the consequences, and discuss why it's important for our law enforcement to use all the available tools to hunt leakers down.

Tim Doescher: From The Heritage Foundation, I'm Tim Doescher, and this is Heritage Explains.

Dustin Carmack: I look at it as, it's both damning for the usage of leaked information, if it's classified, or as part of a law enforcement sense of investigation, to be leaked in many ways for political purposes, one.

Carmack: But two, probably the more important thing, is from either the intelligence community or law enforcement apparatus, is what that could do to our sources and methods of how we collected that information, and it could inhibit the future of an investigation, entirely. It could damage an allied relationship. Depending on if that information had came from an overseas source, from our allies, which can be highly damning to relationships. And what's really frustrating at times, too, is a lot of the times, these leaks are done in such a way that it's cherry picking information.

Doescher: Yeah.

Carmack: So you'll see members of Congress run out there and speculate, even like right now, like I said, I don't have all the details of this specific case, but to a large extent, it's highly speculative until we really probably see the inspector General's review.

Doescher: That's Dustin Carmack. He's a research fellow in the Center for Tech Policy, here at The Heritage Foundation. He sat down with me to discuss his recent article, that asks a crucial question. Should law enforcement be able to investigate leaks of classified information? Hmm, good question. But before we answer, let's set the stage.

Doescher: Leaks happen, all the time. And the sensitivity of information leaked runs the spectrum, from phone calls, to emails and text messages, to park benches, even parking garages in the '70s, as portrayed in this Warner Entertainment gem.

>>> The Justice Department Is Justified In Using All the Tools at Its Disposal To Hunt Down Leakers

Clip: It was a Haldeman operation. The whole business was run by Haldeman, the money, everything. It won't be easy getting at him. He was insulated. You'll have to find out how. Mitchel started doing covert stuff before anyone else. The list is longer than anyone can imagine. It involves the entire US intelligence community, FBI, CIA, and Justice. It's incredible. Cover up had little to do with Watergate. It was mainly to protect the covert operations. It leads everywhere. Get out your notebook, there's more.

Doescher: Now, I don't know if you've ever seen, All the President's Men, but at this point in the movie, when Washington Post reporter, Bob Woodward, meets with his deep background anonymous source, Woodward's investigation of the now infamous Watergate scandal, finally catches on, the frustrating investigation reaches a fever pitch, and it sets in motion, the resignation of President Nixon.

Doescher: Now, some would say journalism forever changed after Watergate. And today, it seems that anonymous sources leaking sensitive information to journalists has become a regular occurrence. Whether it's the Pentagon Papers, Elliot Snowden, Julian Assange, the Plame affair, or even more recently with the Trump administration leaks. It might make for good cinema and TV ratings, but we have to ask the question, is leaking sensitive information a virtuous thing, or is it harmful? What if that leak becomes a threat to our national security?

Doescher: Let's pick up our conversation with Dustin Carmack, and learn why it's important for our law enforcement to use all the available tools to hunt these leakers down.

Doescher: All right, let's start from the top of your piece. It was in the Daily Caller. It's called, The DOJ is Justified in Using All the Tools at its Disposal to Hunt Down leakers. Now, I got to tell you, man, the headline just grabbed me. It really, really did. Because here in DC, we were constantly hearing about leaks, and what that leads to. A lot of times it goes nowhere. But especially now, you start with the alleged Russia collusion by the Trump campaign. And after Mueller finds nothing, the Department of Justice launched an investigation into all of the classified information that was leaked. Just give us a little bit more context, and catch us up to where we are right now, and set the stage for this conversation.

Carmack: Yeah, absolutely. The New York Times, I believe, was the first one to report, here a few weeks ago, about several members of Congress, and actually several members of the media outlets, that have been under a gag order by the Department of Justice, related to some subpoenas that had been given to them, as it related to these investigations. So there's really not a lot of details, as we currently know right now.

Doescher: Let me stop you there. Who issued these subpoenas? What was the reason for this?

Carmack: The understanding from the article, as it states right now, is that the Department of Justice had launched a variety of investigations into national security related leaks of classified information.

Doescher: Okay. This is all springing from, was it in 2019, when the Trump controlled Department of Justice said, "Hey, we got to look into how all this information just somehow got out.", kind of a thing. Is that what it was, basically?

Carmack: Absolutely. Well, there was also at the same time, Jim Comey, the former FBI director, also had been under investigation briefly for his, the possible classified information that he had given in his memos over to his longtime friend that had been leaked to the New York Times. There was the Michael Flynn transcripts to his conversations with the Russian ambassador, that happened prior to his time as National Security Advisor, briefly. So, like I said, there's not a lot of details currently about what these investigations, but I mean, the likelihood is that they were looking at how this information came to be out in the public.

Doescher: Okay. So let me just ask you this, from a bird's eye view. Is this a common thing that happens with the Department of Justice, or is this specific to the Trump administration?

Carmack: No. It's absolutely, it's a bi-partisan, non-partisan issue, that has been paining government officials for years. Janet Reno gave testimony before the Senate Intelligence Committees, back right when Clinton left office, primarily focused on that they have a really difficult time hunting down people that leak national security related, classified information. This all actually happened under Attorney General Eric Holder. They've had a long time policy to be able to go after, and use tools in their toolbox, to go after leakers. Specifically, there was a 2012, 2013, case investigation, leak investigation, that related to some metadata being subpoenaed from some Associated Press reporters, and there was a big uproar about that. That was related to the leak of an Al Qaeda, essentially an Al Qaeda source, that was used to hunt down a terrorism plot.

Doescher: You said in your piece in Daily Caller, and I'm going to link to it, "Absent from the current brouhaha is any debate on how damaging leaks of classified information can be, both the national security of the United States, and to the women and men who risked their lives to keep our nation safe." Let's just get a little more specific about the impact. Just give us some examples of how this manifests itself.

Carmack: Well, there's two fold. So I mentioned earlier, there was the case of a bomber, an Al-Qaida bomber, and a source that had been put in place. This was as it was reported. And it was leaked to some Associated Press reporters back in 2012, 2013. The Attorney General, now the former Attorney General, Barr, had actually written an op-ed in the New York Times, also discussing this. This was also with the former counter-terrorism advisor for President Bush. And essentially, hunt down these leakers, because these damage essentially, that was an amazing source likely, that we essentially burnt. And like I said, this could also, when it comes to sources and methods, depending on if it's an overseas source, especially in a counter-terrorism investigation, it could be a matter of life and death for folks too, that are overseas.

Carmack: Other cases. I mean, look at the case of last summer. There had been the case of leaked information, as it related to supposed Russian bounties, and very, like I said, cherry picked information, didn't contain a clear picture. I can't even discuss most of the underlying parts of that.

Doescher: Right.

Carmack: But the Biden administration said this last April, as they related, when they started making moves on the Russian government, in terms of sanctions, that they didn't consider that as part of the package, because they viewed that intelligence now to be either low to moderate.

Doescher: Yeah. What I really think the drives here is, and you mentioned it earlier, which I think that is very, very telling. This is, maybe not clearly, but it can definitely be abused for political purposes. When you, like you said, cherry picking stuff, and then just leaking it, that drives for a headline, and then whether it goes anywhere, or does anything, the damage has been done.

Carmack: This happened all the time last year. I worked for the Director of National Intelligence, and we were in charge of, essentially, spearheading the government's efforts, as it related to intelligence gathering for election security, in terms of foreign and malign influence campaigns, foreign actors, trying to get involved in the US election cycle, and members of Congress. We were going through our oversight matters to essentially, brief them on a common basis.

Carmack: That happens all the time, between the leadership of the House and the Senate, or the House Intelligence Committees, or the Senate Intelligence Committees. But in many ways, these briefings ended up becoming larger scale events. There's a lot of interest, as anyone would want, in terms of an election cycle. But a lot of times this classified information would leak less than five minutes after one of these briefings, after they spent, essentially, the first 10 minutes warning people about the seriousness of the nature of the information that they were hearing, why it was important to protect it, that it needed to be encapsulated in a broader picture of intelligence gathering. In terms of cherry picking one thing can mean, you can identify one thing that just fits your political narrative.

Doescher: Yeah.

Carmack: And so that's one of the things that was really, we struggled with.

Doescher: Let me ask you this, from your obvious experience. I'm wondering, is this just word of mouth leak, or are they actually taking stuff from it? Because everything leaves a footprint now. I type a keystroke, and my server is probably going to record that I typed that keystroke. I mean, like we say, metadata, shows everything kind of a thing. Can all this stuff be traced? Can all of it be traced? These leaks are all documented. It's just, they're hiding behind bureaucratic rules, or is it the journalists they are protecting? How does this happen? How does this work, and why isn't it so easily tracked?

Carmack: It depends. This could be a source meeting with somebody, in person over lunch. It could be on a park bench. It could be via telephone call. It could be via an encrypted app, such as Signal, or end to end encrypted applications, which make it much more difficult for an investigator to be able to look into. That's what I really wanted to round back to. In the case of these leak investigations, so usually what has to happen is, the agency in which the information was based from, in terms of the classified information, has to file something called a crimes report, which essentially it has to answer 11 questions that, for the DOJ and the FBI, because they essentially have to prioritize. A lot of times this classified information, depending on if it's compartment, or if it's more broadly disseminated, this could go to thousands of people.

Doescher: Wow.

Dustin Carmack:
So, trying to find a needle in a haystack for a leak is really difficult for investigators. So they really have to look and judge, the department does, and choose cases that either they find to be highly damning to national security, in terms of the level of egregiousness.

Doescher: Yeah, right.

Carmack: And so then, they have to choose. Once those investigations, even once that process is done and they proceed, they then have to exhaust every other medium, before they would... The way the regulation works, as I understand it from under Attorney General Eric Holder, and even prior to that was, they would have to exhaust every other medium. And then, only then, could those investigators go for the subpoenas of records that related to either members of the press... And again, in my opinion, and now this is not to say that this removes any liability of a journalist, if they disseminate national security leaked information. But generally, the Department of Justice does not care about the disseminator from that perspective, as it relates to the press, they care about the leaker. And that's what my point of my piece was.

Doescher: So really what I'm picking up here is, it's really easy to leak something. It's really easy for someone to leak something, but how easy is it to investigate a leak?

Carmack: Nearly impossible. At the end of the day, you're talking about information flows that could go to 10 people, 20 people, 50 people, 100 people. Each one of those could create multiple leads, so for an investigator, it's extremely difficult. So they're trying to line up, where these sources possibly met, how this information was disseminated. They look for particular areas of the information that had been leaked. Was it a paper copy? Is this all secondhand information?

Doescher: What should be the response of the Biden administration, in your ideal world, to this? Again, we need tools to ensure that we stay safe. We need these. So what should be the posture?

Carmack: I think one of the things that's going to be interesting here is, because, I'll be curious, again, because just not predetermining, what happened in these investigations? I think the Inspector General will look through this. But, they're going to be looking through what the Democrats and others are saying, that there's possible political motivations for these investigations being launched in the first place. So that needs to be sorted out, one.

Carmack: But two, the other thing, in my opinion, is that whoever asked for these subpoenas, clearly knew, at some point, that they were going to be out there, in terms of, everything will come out with sunshine eventually. They must have been taking it seriously enough for them to go forward with these subpoenas, that they felt like they were relying on information, and they had exhausted every other medium.

Doescher: Yeah. The Justice Department is justified in using all the tools at its disposal to hunt down leakers. Do you see the current administration doing everything that they can, to ensure that those tools exist? Or, are you nervous with this posture, right now?

Carmack: What the President channeled, and the Attorney General channeled, like two days later, to me, it doesn't bode well for what I think should be a bipartisan nonpartisan issue to allow the Department of Justice to do fair and credible cases, investigations, to hunt down leakers of classified information. And what I worry about here is the political expediency of the brouhaha, as I mentioned earlier, is causing everybody to make fast reactions without knowing all the facts. Or, vice versa, cutting your nose off, to spite your face, that in the longterm, DOJ needs to have these tools.

Doescher: Dustin, thank you so much for coming in today. I appreciate the piece. And we're going to continue to track this, because like you said, there's a lot more to be said.

Carmack: Thank you. I appreciate it.

Doescher: Folks, thank you so much for listening to another episode of Heritage Explains. All this talk about leaks, our producer, John Popp said, "We should tell them that they should feel free to leak our episodes to their friends and family." I'm going to tell you something, John, that is one leak we will not hunt down. So please, feel free to share our podcast with your friends and family.

Doescher: Also, I've linked to Dustin Carmack's work in the show notes, so please log on. He's doing incredible work here, in the Center for Tech Policy at Heritage, so please, log on and see all the things he's up to there.

Doescher: Michelle's up next week. We'll see you then.

Heritage Explains is brought to you by more than half a million members of The Heritage Foundation. It is produced by Michelle Cordero and Tim Doescher, with editing by John Popp.