Leaks on a Platter

Why a war on “leakers” waged by the Sessions DOJ will have zero credibility.

U.S. President Donald Trump (L) and Attorney General Jeff Sessions (R)
Trump’s priorities are motivated by his desire to burnish his own image and punish anyone who embarrasses him.

Shawn Thew-Pool/Getty Images

Jeff Sessions loves his job and would very much like to keep it. As the 70-year-old former senator told the Associated Press recently, serving as attorney general under Donald Trump “goes beyond anything that I would have ever imagined for myself.” And while the criticism that he has lately been taking from the president has been “kind of hurtful,” Sessions told Fox News anchor Tucker Carlson in an interview last week that he still wouldn’t voluntarily walk away from the important work he’s doing to fight gun crime, illegal immigration, and drug trafficking. Though some have argued that Sessions should resign in protest of Trump’s brazen disrespect for the Justice Department’s independence, the attorney general has made it clear that he intends to do the opposite: placate the president, flatter him, and get back into his good graces.

How will Sessions achieve that goal? For one thing, by delivering Trump a burlap sack full of pesky deep state rats: those abominable leakers who have, against the president’s will, made this administration one of the most transparent in history. Sessions told Carlson that the Justice Department will make an announcement in the next few days regarding its campaign against illegal leaks, a subject Trump has been obsessed with since the start of his presidency. “It cannot continue,” Sessions said, after praising the president for his determination and leadership. “Some people need to go to jail.”

Sessions’ pronouncement sounded like a direct response to Trump’s professions of unhappiness with the attorney general’s performance. On July 25, Trump tweeted that Sessions was “VERY weak” on the issue of leaks and said during a press conference in the Rose Garden that he was “very disappointed” in the attorney general for not doing more about the problem. Against that backdrop, Sessions’ sycophancy makes him look a bit like John Cusack standing outside Ione Skye’s window with a boombox over his head. Give me another chance, he seems to be saying. I can do better.

We don’t know yet exactly what the Justice Department plans to announce at this week’s press conference—whether it will reveal an ongoing investigation, the formation of some kind of task force, or an actual charge against someone Sessions has decided he wants to prosecute. What’s certain is that if and when the Trump DOJ does bring a criminal leaking case, it will have zero credibility in doing so. Even if the facts are on the government’s side, any hypothetical leak prosecution will look politically motivated. Thanks to Trump’s ill-advised and unprecedented attacks on Sessions, it’ll be impossible to shake the sense that the attorney general is acting first and foremost to please his boss and protect his position in the administration.

Those optics could be consequential in the courtroom. According to the doctrine of “selective prosecution,” the government cannot target a defendant based on “an unjustifiable standard such as race, religion, or other arbitrary classification” even if that defendant is guilty. That means Sessions and his DOJ can’t just go after people Trump doesn’t like while letting allies of the administration slide for the same exact conduct.

Though several DOJ officials–turned–defense attorneys told me that selective prosecution is extremely hard to prove—to do so, a lawyer must demonstrate that the government engaged in conscious discrimination in taking up a case—it might be easier to show given that Trump is constantly shooting his mouth off and “saying the quiet parts loud.” Recall that Trump’s travel ban has been repeatedly blocked by federal judges in large part because he and his cronies openly and repeatedly professed that they wanted to stop Muslims from coming into the country. By the same token, it’s easy to imagine Trump blurting something out, on Twitter or elsewhere, that reveals a personal animus against the target of a DOJ leak investigation. Between that and the pressure Trump has put on Sessions to put someone—anyone—in jail for leaking, it’s possible that under the right circumstances, a defense attorney could make a claim of selective prosecution stick.

To be clear, there’s nothing wrong with a president directing his attorney general to embrace specific law enforcement priorities. While it’s fine for the president to express his wish that the Justice Department focus on prosecuting, say, violent crime or white-collar fraud, things get dicey when the White House’s priorities become too specific—namely, when they entail the targeting of specific individuals. In fairness to Trump, that’s not what he’s been doing here. As Michael Bromwich, a former inspector general for the DOJ, told me, “Trump isn’t the first president to be disturbed by leaks and … I doubt that he’s the first president to convey his general concern about leaks to the attorney general. I think he and the White House are on reasonably safe ground as long as they continue to couch [their rhetoric] in generalities.”

Of course, Trump can pretend all he wants that his preoccupation with leaks stems from national security concerns rather than his own personal vendettas against those who are doing harm to his administration. But as anyone who has paid even cursory attention to this presidency knows, Trump’s priorities are almost exclusively motivated by his desire to burnish his own image and punish anyone who dares to betray or embarrass him. Sessions knows this too, which is why he will almost certainly seek to make an example of someone who can be painted as an enemy of Trump rather than just a generic whistleblower.

After all, if Trump could be satisfied with the latter, the June arrest of National Security Agency contractor Reality Winner might have gotten more of his attention than it did. The fact that he has barely remarked upon it—while tweeting endlessly about his nemesis James Comey giving one of his personal memos to the New York Times—tells us everything we need to know about what kind of leakers Trump is really after and why any case Sessions comes up with to satisfy him should be viewed with extreme skepticism.