April 10, 2006
Leaks, and the Leaking Leakers Who Leak Them Posted by John Steele Gordon at 12:15 PM EST Last week the special prosecutor in the Valerie Plame case, Patrick Fitzgerald, released grand jury testimony by Lewis “Scooter” Libby, Vice President Cheney’s former and currently indicted chief of staff, that he had been authorized by President Bush to pass on previously classified information to Judith Miller, then a reporter for The New York Times. Washington and the liberal press were shocked—shocked!—that President Bush would actually practice politics by declassifying information favorable to his position and releasing it. They accused the President of telling Libby, via Cheney, to “leak” the material, the word used in the headlines in both USA Today and the Times. First, of course, if everyone in Washington who is guilty of having leaked material to the press for his or her own political purposes were in jail, the District of Columbia would be a ghost town. I’m not quite sure why the President—who is merely the most powerful politician in Washington by virtue of occupying the White House—should not do what everyone else does. To be sure, President Bush has often deplored leaks and threatened dire consequences for those in his administration caught doing the leaking. But just as everyone in Washington leaks when it suits their purposes, so everyone in Washington deplores leaks that are not in their political interest. Hypocrisy is not exactly an endangered phenomenon on the Potomac. Second, is President Bush guilty of leaking? By definition, a leak is the unauthorized release of information. But unless it contravenes law (as intentionally revealing the name of a “covert agent” for the CIA would), the President can authorize the release of whatever information he chooses to release, as the President is the fount of authority in the Executive Branch of the federal government. Indeed, he is the Executive Branch. The Constitution could hardly be clearer: The first sentence of Article II reads, “The executive Power shall be vested in a President of the United States.” It is axiomatic that what the President has the power to do, he has the power to undo, even if that is not in the interests of his political opponents.
Patrick Fitzgerald, in fact, did exactly what the President did. Revealing grand jury testimony is against the law, unless you happen to be the prosecutor presenting a case to that grand jury, in which case you can release whatever suits your legal (and, often, political) purposes. Leaking in politics probably goes back at least to Pharaonic Egypt, but it entered the big time with two nineteenth-century developments: democratic politics and modern media. The very word, in fact, was coined by the man who, above all others, brought the modern newspaper into being, James Gordon Bennett of the New York Herald. I wrote about Bennett’s remarkable contributions to journalism in American Heritage three years ago. In 1848, the Mexican War successfully concluded, the Senate was considering the Treaty of Guadeloupe-Hidalgo that would end it. Bennett obtained a copy of the treaty, which the Senate had kept secret, and printed it in full. The Senate, outraged, ordered the sergeant at arms to arrest the Herald’s Congressional correspondent and have him grilled to reveal his source. Bennett, of course, had a field day editorializing on freedom of the press, and after a month in jail the correspondent was released, his source still anonymous (which is a good deal more than can be said of Judith Miller). A few days later, Bennett, to demonstrate that this sort of thing was now business as usual, published a table of “leaks,” listing a dozen newspapers, their Washington correspondents, and the “leaky Senators” who regularly supplied each with inside information. As far as I know, this is the first time the word leak was used in the political sense.
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