War on Leakers Is Off to a Bad Start for Trump

(Bloomberg View) -- The prosecution of intelligence contractor Reality Leigh Winner under the Espionage Act is a sure sign that the Trump administration's war on leakers has begun. But as the opening battle, it's poorly chosen, and a serious mistake in prosecutorial discretion by Deputy Attorney General Rod Rosenstein, who should know better. Winner has the wrong profile -- and the leak is very much on the wrong subject -- for a headline-grabbing prosecution by an administration in which the president is already the leaker in chief.

The only good news for the Justice Department is that, if the evidence pans out the way it's been reported, they have Winner dead to rights. The National Security Agency document she is accused of printing and sending to the Intercept is classified, and passing it along was a felony. Barack Obama's administration also aggressively prosecuted leakers, so ideally, the critique of the Winner prosecution shouldn't be partisan.

But the choice of Winner obviates that advantage. The topic of the leaked NSA document is the greatest problem: It's on Russian hacking around the 2016 vote that elected Donald Trump, who selected Attorney General Jeff Sessions and Rosenstein. Sessions isn't involved because, well, he's recused from Russia-related matters because of his contacts with the Russians.

It goes without saying that the Russian hacking is the third rail of politics so far in the Trump administration -- and the issue isn't going away. Targeting Winner for this leak makes it look as if the Justice Department is colluding with the White House to hide damning information about whether Russian President Vladimir Putin actually succeeded in giving the election to Trump, as he clearly would have loved to do.

When you add that Trump has already been in the hot seat for leaking classified intelligence to the Russian government, the optics seem even less positive for the prosecution.

To make matters worse, the actual document, while providing more detail than was previously publicly revealed, doesn't seriously deepen the story  as we knew it. We know the Russians used spear-phishing techniques. We know they aimed at election-related technologies and businesses.

Thus, it appears that Winner is being prosecuted for revealing something that, generally, was already in the news. This is totally unlike the Chelsea Manning or Edward Snowden leaks, or even the prosecution of Scooter Libby for leaking CIA officer Valerie Plame's name in the George W. Bush administration. Those leaks were substantive and new -- and major.

Further underscoring how of Winner's leak was relatively minor: There is no raw intelligence in the document. It's just an account of American intelligence assessments. We would likely have gotten that information at some point in some way from congressional testimony.

Then there is Winner herself, a potentially sympathetic defendant. News reports say she's only worked at the defense contractor Pluribus International Corp. since February. She's just 25 years old.

And, from what we've seen in the complaint, Winner is no criminal mastermind. She apparently used her own work computer to contact the news outlet and search for classified material, and printed out the classified document directly. (Who prints anything out anymore? We now have our answer.)

The result is that Winner can be depicted by a skilled defense attorney as a newcomer to government contracting work who didn't appreciate the seriousness of her offense.

Alternatively, her lawyers may want to make her out as an anti-Trump crusader, outraged that information about how Putin helped Trump steal the election was being kept from the public.

Either defense is unlikely to keep her from being convicted. But the publicity-oriented version could well make her a folk hero. That's the last thing the Trump administration needs.

Winner stands to be sentenced to as many as 10 years in prison under the Espionage Act for a crime that, to much of the public, won't sound anything like espionage. A draconian punishment would make things worse for the Trump administration. But if the Justice Department settles for a slap on the wrist, the whole prosecution will look silly -- and that will look bad for Rosenstein.

So why did a seasoned prosecutor like Rosenstein go ahead with the case? One possibility is that he liked its open-and-shut nature: He wants a fast plea bargain and the story to go away. That would please the president without prolonging what could be political agony.

Another theory is that Rosenstein is such a straight-shooter that when this crime was presented to him, he couldn't help but prosecute it. If that's true, it would be a nice thing -- but also a reason to think the deputy attorney general isn't up to the job of running the department on all things Russia-related.

When it comes to prosecuting, the government lawyer's job demands constant and subtle exercise of discretion -- in charging, negotiation and sentencing. Wise discretion here would have held off on the Winner case, at least as the kickoff to a campaign against leaking by an administration already under fire for Russian election interference.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His seven books include “The Three Lives of James Madison: Genius, Partisan, President” and “Cool War: The Future of Global Competition.”

To contact the author of this story: Noah Feldman at nfeldman7@bloomberg.net.

To contact the editor responsible for this story: Stacey Shick at sshick@bloomberg.net.

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