Problems with the Focus on Leaks as Trump’s Defense to Russia Investigation

Monday’s public hearing of the House intelligence committee confirmed two facts that were largely already established in the public domain. First, Director James Comey confirmed that the Federal Bureau of Investigation is conducting a counterintelligence investigation into Russian efforts to interfere in the 2016 presidential election, including alleged links between the Trump campaign and the Russian government. Second, there is no factual basis for President Donald Trump’s accusation that former President Barack Obama ordered a wiretap of Trump Tower. In her Just Security piece explaining what we learned, Kate Brannen also notes several more subtle facts revealed during the hearing.

What also became crystal clear is that the current Republican game plan is to focus on allegations of illegal leaks to the press, largely at the expense of real interest in Russian election interference and potential connections to Trump associates. Republican committee members thundered away about the gravity of leaks with relatively little reference to the substantive allegations about Russia under investigation.

The apparent GOP strategy of leaks as a diversion from the Russia scandal is bad strategy and bad for our democracy.

First, it undermines the credibility of the intelligence committee’s investigation. This is an investigation of a hostile foreign government’s attacks on the integrity of our presidential election and potential infiltration of Trump’s presidential campaign, or worse, the White House. The leaks of near-exclusive concern to the Republican members relate to then-National Security Advisor Michael Flynn lying to the American people, the Vice President, and, maybe, the FBI regarding his Russia contacts. Americans will see through a leaks strategy as a transparent attempt to carry water for the White House.

Second, a GOP focus on leaks could backfire by reopening inquiries into other stories sourced to FBI leaks in the New York field office that were damaging to Hillary Clinton’s campaign.  Ryan’s article with Richard Painter details some of those leak attributions. Those stories do not purport to contain information collected through classified foreign intelligence, but they do relate to Russian interference in the election. Further, FBI leaks calculated to damage a presidential candidate would clearly violate Department of Justice and FBI policy and federal law (think: the Hatch Act), and could also trigger criminal liability if they contained classified or grand jury information. Thus, an obsession with leaks to the exclusion of substance would have far-reaching consequences and further deepen the partisan divide.

This will need to be a “both-and” type of investigation that seeks a full accounting of the Russian interference in U.S. politics. Liability for leaks is a part of that overall effort. But the core problem with Watergate was not Deep Throat. It was all the President’s men.

Image: Zach Gibson/Getty

 

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About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016) Follow him on Twitter @rgoodlaw.

Andy Wright

Professor at Savannah Law School, Former Associate Counsel to the President in the White House Counsel’s Office Follow him on Twitter (@AndyMcCanse).