On Friday morning, President-elect Donald Trump tweeted a request for House and Senate intelligence committees to investigate the leak of a classified intelligence report to NBC News reporters.
“I am asking the chairs of the House and Senate committees to investigate top secret intelligence shared with NBC prior to me seeing it,” he tweeted. “Before I, or anyone, saw the classified and/or highly confidential hacking intelligence report, it was leaked out to @NBCNews. So serious!” he added on Sunday.
But how likely is such an investigation to happen, and what would happen if it did? Attorneys that have represented journalists and government employees say that such an investigation would be extremely unusual, with only one comparable hearing, held in 1976.
Congressional committees, including the House and Senate intelligence committees, do technically have the authority to investigate the leak and subpoena NBC News reporters. But they are not likely to do so, media attorney Mark Zaid told POLITICO.
“I can’t fathom they would do that,” he said.
Zaid has worked extensively with both the House and Senate intelligence committees and has represented government employees accused of leaking classified information to the press.
“I’d say there is little to no chance that Congress would get involved with any kind of classified media leak investigation,” he said. “Could they? Sure. Do they? No.”
This past week, U.S. intelligence agencies presented a classified report into Russian attempts to hack the Democratic National Committee and other institutions to President Obama. Shortly after the report was prepared and presented to Obama, anonymous U.S. officials leaked details about the report to The Washington Post and NBC News.
On Friday, Trump received his own classified briefing on the report. Later in the day, a declassified version of the report was released to the public. The president-elect was not happy that classified details leaked to NBC News before his briefing, apparently spurring the tweet.
There has only been one instance in the last hundred years when a Congressional committee subpoenaed reporters as part of a leak investigation. In 1976, CBS reporter Daniel Schorr obtained the House intelligence committee’s classified report into illegal CIA activities. Schorr discussed details of the report on-air and then passed a copy of it to the Village Voice, which published extensive excerpts of it.
In response, the House ethics committee subpoenaed Schorr (and three members of the Voice’s parent company) in an attempt to get Schorr to reveal his source.
During the televised hearings, Schorr refused to identify his source. The chairman of the committee repeatedly warned him that he could be held in contempt of Congress if he refused to cooperate with the subpoena. Schorr told the committee that it was setting a dangerous precedent.
“Whatever happens hereafter at this hearing, it is my belief that your subpoena, commanding the appearance of a reporter to discuss his journalistic activities, its effect can only be to establish an atmosphere of intimidation for the press,” he said, according to a transcript of the hearings.
At the hearing, Schorr was represented by Joseph Califano, Jr., who had previously represented Washington Post reporters Bob Woodward and Carl Bernstein during the Watergate scandal.
“Schorr was subpoenaed by the committee,” Califano told POLITICO, recalling the incident more than 40 years later. “The issue was, they were going to have the House cite him for contempt. We went before the House committee. It is the only time in my years practicing law in Washington that I ever saw minds change at a committee hearing. We went in as underdogs, Schorr made a statement, I made a statement, days of questions and we beat the subpoena by one vote.”
In the end, the House ethics committee voted 6-5 not to cite him for contempt of Congress.
Califano was dismayed after hearing about Trump’s tweet.
“That is a savage attack on the First Amendment,” he said. “We’ve been through this. Reporters have confidential sources. That’s become a hallowed part of the First Amendment and the ability of reporters to report. … These committees should not be getting into that.”
It would be much more likely for the Department of Justice to investigate the leak. As POLITICO reported last month, the Justice Department has on numerous occasions launched criminal investigations into government employees who passed classified information on to reporters.
“The way this would go is, the CIA or [Office of the Director of National Intelligence] or whoever else had the equities in this leaked report would file a crimes report to the Department of Justice, and then the National Security division and the U.S. Attorney’s Office would look into it,” Zaid said.
If the Justice Department decides to indict a leaker under the Espionage Act, a federal judge will empanel a grand jury. That grand jury has the power to subpoena journalists and force them to testify about their confidential sources. Journalists who refuse to testify before the grand jury can face contempt of court charges and end up in prison.
Califano believes it is inappropriate for anyone — whether a Congressional committee or a federal grand jury — to subpoena a journalist as part of a leak investigation.
“If the government wants to find out who leaked and it’s somebody in the government, and if the intelligence community wants to find out who leaked, the Justice Department can go look at the CIA and look at all the national intelligence agencies,” he said. “Not the reporter. That’s the wrong way to do it. That is really a serious erosion of a freedom that is essential.”
Califano spent than a decade at the highest echelons of the federal government — first as a top Pentagon official, then as a senior aide to President Johnson and finally as the Secretary for Health, Education and Welfare in the Carter administration. Among other things, he said, that experience taught him that the government is overly paranoid about journalists’ publication of leaked government information.
“I spent a lot of my time in government,” he said. “The tendency in the government is, somebody comes in and says, ‘Oh my god, this is terrible that they printed this! This will be terrible for our national security.’ It never has been.”
“There is so much power in the federal government, and there’s so much power in these intelligence agencies and military agencies and in the State Department,” he added. “There’s so much that the press has to have confidential sources. If the press didn’t have confidential sources, we would be a much less free country. There’s no question about it.”