The Trump administration referred a record number of classified leaks for criminal investigation, totaling at least 334, according to a Justice Department document obtained by The Intercept under the Freedom of Information Act.
While leak investigations had already been on the rise under the Obama administration, which prosecuted more than twice as many leakers under the World War I-era Espionage Act as all previous administrations combined, that number still rose sharply under the Trump administration.
In 2017, there were a staggering 120 referrals for leak investigations from government agencies to the Department of Justice — higher than any year since at least 2005. There were also 88 criminal referrals for leaking classified information in 2018, according to the document, 71 in 2019, and 55 for the first three quarters of 2020, according to the most recent data available. By comparison, during the Obama administration, there were 38 referrals in 2016, 18 in 2015, and 41 in 2014.
Very few referrals typically end up identifying suspects, much less going to trial. Instead, the leak crackdown is meant to instill a climate of fear around talking to the press. In its leak indictments, the Justice Department has stressed how it hopes to “deter” further leaks, as it did in its 2019 indictment of military intelligence analyst Henry Kyle Frese, accused of leaking classified information to two reporters. That deterrence also has a political dimension: As The Intercept has reported, most leaks prosecuted by the Trump administration have pertained to the Russia investigation.
This document, which lists the number of referrals but no other details, like the originating agency or the number of open investigations, was obtained after a FOIA request to the Justice Department’s National Security Division, seeking a yearly breakdown of “crimes reports,” which are formal notifications sent by intelligence agencies to the Justice Department whenever an unauthorized disclosure of classified information is believed to have occurred.
As president, Donald Trump made no secret of his contempt for leakers and whistleblowers, calling them “traitors and cowards” and directing his administration to investigate leakers aggressively — especially leaks to the media, which were rampant in the Trump White House. In 2019, Trump referred to the whistleblower who filed a report with Congress on Trump’s call with Ukrainian President Volodymyr Zelensky as “close to a spy,” adding ominously: “We used to handle them a little differently than we do now.”
In 2017, then-Attorney General Jeff Sessions condemned what he called a “staggering number of leaks” from inside the Trump administration and told Congress that leak investigations had increased by 800 percent. The report, obtained under FOIA, reflects a similar uptick: Referrals were up 400 percent in 2017 from the previous year.
The FBI under Trump, in fact, even established a special unit in its Counterintelligence Division for investigating leaks, according to a heavily redacted FBI document obtained by TYT Investigates in 2018. “The complicated nature of — and rapid growth in — unauthorized disclosure and media leak threats and investigations has necessitated the establishment of a new Unit,” the internal memo states. A former senior FBI counterintelligence official with experience in conducting media leak investigations told The Intercept that the unit had been established to crack down on leaks relating to the Russia investigation. (The FBI declined to comment when asked if it had closed down the leaks unit established under Trump.)
Ironically, in another conversation the president had earlier that summer, Trump disclosed classified information about a military operation against the Islamic State to Russia’s foreign minister and the Russian ambassador to the U.S. When this was later reported, after the White House initially denied it, Trump admitted to it, saying that it was “absolute right” to do so, before calling on the FBI director — on the same day — “to find the LEAKERS in the intelligence community.”
In the past, a small number of leaks have resulted in investigations, an even smaller number in suspects identified, and a still smaller number result in actual prosecutions. Though there were far more leak referrals under the Trump administration, the number of people prosecuted for leaking classified information to the press was about the same as the Obama years, totaling eight, according to the U.S. Press Freedom Tracker. Only around three leakers total were prosecuted prior to the Obama administration.
However, the low rate of prosecutions doesn’t seem to be for lack of trying. As George Tenet bemoaned to Congress during his confirmation hearing to be director of Central Intelligence in 1997, “We file crimes reports with the attorney general every week about leaks, and we’re never successful in litigating one.”
“Leaks are extremely hard to prove,” the former senior FBI official who had worked on media leak cases said. In many cases, too many people have access to a piece of information to be able to narrow it down enough to catch them, and even if you have a good idea, the FBI hates the bad press that media leak cases frequently entail, the former official said. “No prosecutor wants to go to trial unless we have someone dead to rights.”