Leakers Mess With Mueller's Investigation of Trump
(Bloomberg View) -- I wrote last week about the ethics of leaking. I did not imagine that I would be returning to the topic so soon. The raft of stories telling us that President Donald Trump faces investigation for possible obstruction of justice, though, requires that I revisit the theme. The commentariat is all agog over the news. But I’m concerned about the news behind the news.
Yes, I am deeply troubled at the possibility that the president of the United States may have committed a crime. Still, people were already choosing up sides on that one before the latest leak, and I doubt that anyone’s mind is going to change soon. A presidential obstruction of justice would constitute a serious challenge to both the rule of law and the proper functioning of democracy. But this column is not about that doleful thought. It’s about a different threat to democracy: the fact that the leak occurred at all. That fact, except among partisans, does not seem to me to be eliciting sufficient outrage.
In my earlier column, I argued that leakers are essentially liars. They want the benefit of being trusted with confidences without suffering the cost of keeping what they know to themselves. They sit in meetings and review documents and implicitly promise to keep the secrets, but their actual plan is to decide for themselves which juicy nugget to share with others. In philosophical terms, the leaker always does a moral wrong to the person who entrusted him with the secret.
But like most moral wrongs, the leak can be excused if the cause is sufficiently vital. Consider the corporate whistle-blower who brings to the authorities details of horrific misfeasance by his employer. I argued last time that one might plausibly excuse, for example, the leaks by former FBI Director James Comey, who explained his conduct as an effort to force the appointment of a special counsel to look into links between Russia and the Trump campaign. Perhaps others in the rash of leakers in recent months had the same motive.
You can decide for yourself whether the motive is sufficient to justify the underlying lie. In any case, now that special counsel Robert Mueller III has begun his investigation, that rationale no longer exists. The individual who leaks what’s going on inside the investigation has no excuse. To share the special counsel’s secrets with a reporter is self-indulgence. To go to work the next day is to intensify the underlying wrong.
One might object that the public has the right to know what the prosecutor is doing, but this seems to me mistaken, at least in the short run. The reason to have an investigation is to take the time to work out what’s happened. Leaks from within make the job of finding the truth that much harder. In other contexts, prosecutors have rightly been sanctioned by judges for leaking to the press details of their investigations. Here, the identity of the leaker makes little difference. Once we know that the special counsel’s office -- or perhaps the Federal Bureau of Investigation -- lacks the capacity to keep its secrets, the cost to the witness of cooperating goes up. Now anyone the prosecutors want to interview must weigh the possibility that what he or she says will wind up on the front page of tomorrow’s paper.
It is for just this reason that I argued before that editors are wrong when they insist that their reporters explain to readers why the leaker insists on anonymity. Those explanations (which usually amount to “because he was not authorized to comment publicly”) are essentially meaningless. What would be enormously helpful to the news-consuming public would be if reporters would disclose instead the leaker’s motivation.
For months now, information that is confidential or even secret has been pouring forth from various corners of the executive branch. The flood began well before the inauguration. It’s not at all unreasonable for Trump supporters to complain that the motivation seems partisan. (True, they might be on more solid ground if they did not need to spend time defending the president’s poor judgment on when to share highly compartmentalized information.)
I don’t deny anyone’s right to be partisan. But supporting one politician or opposing another is a poor reason for engaging in the lie that is leaking. Behavior so corrosive helps destroy the trust that is necessary for a government to function. That the U.S. president is under investigation is surely newsworthy. But newsworthy and leakworthy are entirely distinct concepts. Publishing the story was right. Leaking the story was wrong.
If Mueller believes there is a case to be made we will find out soon enough. At the moment there is no way to tell whether he is thinking “It looks like there’s probably a crime” or “I don’t see much here, but I have to cover all the bases.” To whisper to a reporter that an investigation is under way only feeds the view among many on the right that the bureaucracy is partisan and unworthy of trust.
This being the season of La Résistance, I am obliged to add that I am by no stretch of the imagination a Trump supporter. I do, however, believe that maintaining the rule of law and the integrity of our governing institutions protects knight and knave alike. And if the answer is that Trump must be taken down by extra-institutional means, then I’m heading for the hills, because America is over.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Stephen L. Carter is a Bloomberg View columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park” and “Back Channel,” and his nonfiction includes “Civility” and “Integrity.”
As I noted last time, one might on the other hand decide not to excuse Comey, because he had other means available such as going to the relevant congressional committee therefore did not have to divulge any confidences to the news media.
Experienced Washington hands have suggested that the leaks are coming not from investigators but from current or former intelligence officials whom Mueller's staff will be questioning. Certainly that would account for the New York Times story, which draws inferences about the crime being investigated from a study of who is being interviewed. But it isn't clear how outsiders could know, as the Washington Post first reported, that the focus of the investigation "changed shortly after Comey’s firing." The Wall Street Journal, too, has reported affirmatively what "a person familiar with the matter" says that the focus is -- not what we can deduce that it is. If nevertheless the leak turns out not to have come from inside the investigation, then I apologize in advance. But in general my argument applies to intelligence officials as well.
To contact the author of this story: Stephen L. Carter at scarter01@bloomberg.net.
To contact the editor responsible for this story: Stacey Shick at sshick@bloomberg.net.
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