Criminal referrals to the Justice Department concerning unauthorized disclosures of classified information have soared under the Trump administration, according to newly released figures.
In 2017 alone, the DOJ received 120 such referrals from federal agencies, while in 2018 it received 88. In contrast, the average number during the Obama administration was 39 per year, with 55 being the highest number of reported leaks in 2015. The figures, of course, do not speak to how much classified material was leaked in each case. Nor do they convey the perceived risk to national security. Such damage assessments are typically classified.
The number of crime reports sent to the DOJ was first obtained by Steven Aftergood, director of the FAS Project on Government Secrecy, under the Freedom of Information Act. The DOJ said its response to the request was coordinated with its National Security Division (NSD) and Counterintelligence and Export Control Section (CES).
The figures appear to confirm statements by former U.S. Attorney General Jeff Sessions, who, in August 2017, claimed that leak referrals from U.S. intelligence agencies had “exploded.” In the six months following President Trump’s inauguration, he said, the DOJ had received nearly as many criminal referrals “as we received in the last three years combined.”
A July 2017 report by the Republican-led Senate Homeland Security Committee based on news articles (as opposed to actual criminal referrals) identified 62 leaks in the first 126 days of the Trump administration. In comparison, there were only 8 leaks in Barack Obama’s first 126 days and 9 in George W. Bush’s, the report claimed.
Without knowing more about who is behind them and what their motivations are, it’s impossible to determine the root cause of the surge concretely (if a unifying cause even exists). It has, however, fed into theories of conspiratorial plots that are popular on the right, and in the White House itself, about executive branch officials working to undermine the president’s authority.
These “deep state” theories were also reinforced to a degree last year by a senior administration official who wrote an anonymous New York Times op-ed, claiming they and other officials like them remained in office solely to “thwart” the president’s “more misguided impulses.”
As Politico noted in 2017, while postulating the existence of a “deep state” far less nefarious than the treasonous one right-wing bloggers claim are subverting U.S. democracy, at least some of the leaks appear to originate with federal employees “defending their turf from budget cuts and bone-headed ideas.”
This past Sunday, Rep. Devin Nunes, a close ally of the president, announced eight criminal referrals he said he was sending to the DOJ. At least one referral targets a Washington Post source who provided a transcript of Trump’s contentious call with former Australian Prime Minister Malcolm Turnbull in August 2017.
Among other leaks to generate criminal referrals was the leak of a National Security Agency document disclosing that Russian intelligence was attempting to hack U.S. election systems. Reality Winner, a former NSA contractor, was sentenced to 63 months in prison after pleading guilty to leaking the document to the Intercept.
“Not all leaks of classified information generate such criminal referrals. Disclosures that are inadvertent, insignificant, or officially authorized would not be reported to the Justice Department as suspected crimes,” Aftergood wrote in blog post for FAS on Monday.
“Meanwhile, only a fraction of the classified leaks that are reported by agencies ever result in an investigation, and only a portion of those lead to identification of a suspect and even fewer to a prosecution,” he added.
Trump himself has been a frequent (if inadvertent) leaker of classified information, though the president does have the power to declassify information virtually whenever he wants.
In May 2017, for example, Trump revealed “highly classified” information to Russian foreign minister Sergey Lavrov during an Oval Office meeting. The information was said to be codeword classified, meaning it was highly compartmentalized and accessible by intelligence officers only on a need-to-know basis.
Sources told the Washington Post that the information, which was later reported to have been provided by Israel, had even been withheld from U.S. allies. In a tweets following the incident, Trump attempted to blame former FBI Director James Comey and “others” whom he referred to as “the LEAKERS.”
Splinter has reached out to the Justice Department for comment and will update if we hear back.