3 questions about Trump's push for a probe into Manchester leaks
U.S. media published leaked material from investigation into deadly suicide bombing
U.S. President Donald Trump has called leaks to U.S. media about the Manchester bombing investigation "deeply troubling" and vowed to find out what happened.
Responding to British Prime Minister Theresa May's outrage over a New York Times story publishing forensic photos of the crime scene, Trump said the leaks were a "grave threat to our national security."
The Times defended its publication of the photos as part of a "comprehensive and responsible" coverage plan of the attack that followed strict guidelines.
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Trump wasn't the only one troubled by the leaks about the suicide bombing, which left 22 people dead. After leaked material appeared in U.S. news reports, Britain briefly froze its intelligence-sharing with the U.S.
Damage was done, says former MI5 intelligence officer Annie Machon, but relations mended later Thursday when the U.K. reinstated intelligence sharing with U.S. after the British head of counter-terrorism policing said he's received "fresh assurances" from the Americans.
Machon's main worry is not about the Times story showing pieces of the bomb and backpack, but U.S. media reports that identified the suicide bomber Salman Abedi before British authorities named him. (Abedi's name was already floating around social media at the time.)
"Other extremists feeling hunted may have taken desperate action to bring ahead another attack," she says.
Trump was "absolutely right" to call for an investigation into leaks, Machon says, due to the deluge that was beginning to "erode his authority as a new president."
But reviews into leaks can face real challenges. Here are three questions about a potential probe.
How hard is it to prosecute leak cases?
Pretty hard, says David Bitkower, a former principal deputy assistant attorney general for the Justice Department's criminal division.
"Leaking per se is not a crime unless the government can prove it violated a specific federal statute," Bitkower says. For example, if the leaked information were obtained through a grand jury, or if it involved classified information.
In the more common "classified" context, a prosecutor would generally have to show the leaker had "reason to believe" the information being passed along could harm the U.S., yet decided to leak it anyway, Bitkower says.
The hard part is proving a person's foreknowledge that the material being leaked could hurt U.S. interests. The "classified" marker is one way to characterize such sensitive documents.
Bitkower was not willing to comment on the Manchester case, but a consequence of this point is that if photos of the backpack and shrapnel from the Manchester attack were not explicitly marked "classified," it might be challenging for a prosecutor to show a leaker knew their potential — if any — for causing harm to the U.S.
Would a review even expose the leakers?
Despite Trump's promise to "get to the bottom" of leaks, rooting out possible leakers in the Manchester investigation would likely be difficult if journalists go to expected lengths to protect their sources.
Former U.S. attorney general Al Gonzales, who calls government leaks a "cowardly" act, imagines how this scenario might play out.
"First the New York Times would be asked to divulge their source, which the Times is not going to do," he says. "So a court tries to compel a reporter to divulge their sources, the reporter says no, the judge threatens to put the reporter in jail, and I'm sure the reporter would go to jail and just sit there."
Reporters, he suspects, would "view that as a badge of honour."
"Judith Miller went to jail, she would not divulge her source," Gonzales says, referencing the former New York Times journalist who in 2005 invoked reporter's privilege during the CIA leak scandal to protect her confidential source, later revealed to be Scooter Libby.
"Sometimes that's just the way things go."
Miller spent 12 weeks in jail before Libby gave her permission to testify before a grand jury.
As a general matter, Gonzales notes most administrations won't pursue reporters, preferring instead to try to ascertain where the leak originated from, a difficult task in and of itself.
What about the intelligence community?
Even if it doesn't lead to a criminal prosecution, a leak investigation can have a significant impact on the intelligence community, says Bitkower, a former Justice Department official.
For one thing, it can lead to administrative sanctions, including disciplinary action, demotions or firings.
"And number two, even if they don't go anywhere, leak investigations can have an impact on an agency — people get interviewed, asked which reporters they talked to, and maybe get their emails or phone records pulled," he says. "That's not a very pleasant experience even if you're not charged with a crime."
Whether or not it results in a prosecution, "when the government is seen taking aggressive action against suspected leakers, it can have the effect of chilling disclosure of information to the press by others," he says.
That would likely be welcomed by the Trump administration, which has repeatedly called for more to be done to find and crack down on leakers.
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