Were James Comey’s Leaks Lawful?

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During his Senate testimony Thursday, former FBI director James B. Comey admitted to being an anonymous leaker — a phrase that now has negative connotations. President Trump’s lawyer even hinted that Comey may deserve prosecution.

Let’s set the record straight. The vast majority of anonymous leaks are fully legal, many serve the public interest, they follow in a tradition widely practiced by our nation’s Founding Fathers, and they are recognized as fully protected speech by the U.S. Supreme Court.

The law is clear and was most recently tested in a case pitting a federal employee whistleblower, fired for leaking information to MSNBC, against both the Bush and Obama administrations.

It started on July 26, 2003, when the Department of Homeland Security issued a confidential internal notice warning that al-Qaida was planning attacks on U.S. airlines. All U.S. air marshals were briefed on the plot, which included smuggling weapons onto flights and having hijackers “overpower” airline crew. But within days of this warning, DHS canceled planting marshals on numerous airline flights. Air Marshal Robert MacLean protested to his supervisors and the DHS inspector general. He was told that the Transportation Security Administration wanted “to save money on hotel costs because there was no more money in the budget” and that there was nothing he could do to change the policy.

The whistleblower became a “leaker.” He simply could not accept the fact that air marshals were being pulled from overnight flights during a high-level security crisis. He could not accept that a decision to save money could place lives in jeopardy. He confidentially contacted an MSNBC reporter and blew the whistle. MSNBC published the story. With the headline “Air marshals pulled from key flights,” it reported on the cancellations, pointing out that they were “particularly disturbing” as they “coincided with a new high-level hijacking threat.”

Within 24 hours of the “leak” being reported by MSNBC, DHS reversed its decision. Air marshals were again placed on the overnight flights, protecting the American people.

The “leaker” was not offered praise for stopping a boneheaded policy. Instead, DHS commenced a search for the whistleblower and eventually identified MacLean as the rat fink. He was fired in April 2006 for providing “sensitive information without authorization” to the press.

Over the course of two presidential administrations, DHS used every legal trick in the book (paid for by the taxpayers) to grind MacLean down, destroy his reputation and ensure that he would never work for the government again. In 2015, nine long years after he was fired, his case came before the Supreme Court. Chief Justice John G. Roberts Jr. wrote the majority opinion.

He ruled that MacLean’s firing violated the Whistleblower Protection Act, and MacLean won his job back. The case turned on a simple principle: MacLean’s disclosures were not prohibited by a federal law. As a public employee, he had a right to blow the whistle on matters of public concern, including DHS’s irresponsible and life-threatening decision to pull air marshals from flights in the face of a credible terrorist attack on airlines.

Why is leaking protected? First, absent a specific legal prohibition, government employees have a constitutional right to speak out on matters of public concern. This right was recognized by the Supreme Court in 1968 and is unchallenged today.

Second, Americans have a right to blow the whistle anonymously. Our Founding Fathers engaged in anonymous speech, and the utility of speaking out confidentially is widely recognized. Justice Clarence Thomas, in another First Amendment Supreme Court case, explained that “the historical evidence indicates that the Founding era Americans opposed attempts to require that anonymous authors reveal their identities on the ground that forced disclosure violated the ‘freedom of the press.’ ” In that case, the majority opinion was more blunt: “Anonymity is a shield from . . . tyranny.”

Whistleblowers know that anonymity is their best shield against the tyranny of government. Once a whistleblower is known, his or her life is never the same. They are ostracized, fired and blacklisted.

Comey’s admission — that he gave a memo documenting a conversation with Trump to a friend to be leaked to the press — is also legal. Was the information classified or secret as a matter of a federal law? Absolutely not. Did he reveal a matter of public interest? Yes. Did Comey have a right to expose these facts anonymously? Yes.

It is time to stop attacking leakers. If someone illegally releases properly classified information, that violates the law. But the vast majority of leakers who release information on matters of public concern are not illegally disclosing classified information; they are blowing the whistle anonymously.

The right of current or former government employees to speak out on matters of public concern is protected under the U.S. Constitution. This is how a democracy functions.

– Kohn, a partner in the whistleblower-rights law firm Kohn, Kohn & Colapinto, is the author of “The New Whistleblower’s Handbook: A Step-by-Step Guide to Doing What’s Right and Protecting Yourself.”

(c) 2017, Special to The Washington Post · Stephen M. Kohn 

{Matzav}

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