The Trump administration’s new method for cracking down on leakers

October 18, 2018

The Trump administration has now indicted at least five journalists’ sources in less than two years’ time—a pace that, if maintained through the end of Trump’s term, would obliterate the already-record number of leakers and whistleblowers prosecuted under eight years of the Obama administration.

The latest case, which broke on Wednesday, shows the administration taking advantage of a new avenue to go after a potential whistleblower. Instead of using the archaic Espionage Act—the 100-year-old law meant for spies, not sources—prosecutors are pursuing the latest alleged leaker using financial laws.

A senior Treasury official named Natalie Mayflower Sours Edwards has been arrested and charged by the US Attorney’s Office in the Southern District of New York for allegedly sharing “Suspicious Activity Reports” (SARs) about financial red flags with a news organization and its journalist for a series of stories related to the Russia investigation in 2017 and 2018.

While the news organization went unnamed in the complaint, the story titles and dates identified correspond with a series published by BuzzFeed that showed, in part, that Trump’s campaign manager Paul Manafort and Rick Gates, an associate of Manafort’s, engaged in suspicious foreign transactions in the lead-up to the 2016 election. The BuzzFeed stories were widely viewed as important contributions to the Russia story when they were first published.

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For her alleged crime, Edwards faces one count of “unauthorized disclosures of suspicious activity reports” and one count of “conspiracy to make unauthorized disclosures of suspicious activity reports” under Section 5322 of Title 3 and federal regulation Section 1020.320(e)(2) of Title 31 of the US Code, which deal with the protection of information involving foreign financial transactions.

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Edwards’s case is the second involving news publications about potential Russian interference that the Justice Department has prosecuted so far. The first case was that of Reality Winner, who shared an intelligence document showing how Russian actors allegedly tried to gain access to voter information in several states. For her act of public service, she was given more than five years in prison—far more than anyone has received so far in the Mueller investigation. Each charge against Edwards carries a maximum sentence of five years in prison.

Like almost all leak cases, this one involves the ensnarement of a journalist and news organization. The indictment contains several excerpts of text messages from an encrypted messaging application allegedly between Edwards and the unnamed journalist. Prosecutors claim they searched the defendant’s phone and got the messages directly, and filed several legal orders to get the metadata—who Edwards allegedly talked to, when she talked to them, and for how long—on several other communications that allegedly took place between journalist and source. We don’t know if any journalists were spied on directly in Edwards’s case, but we do know the Trump administration isn’t afraid to take that step, as it did against The New York Times’ Ali Watkins, in another leak case that broke earlier this year.

(A reminder to journalists: While encrypted messaging apps provide some great protections that regular SMS texts do not, they don’t completely protect journalists or sources. If prosecutors get your source’s phone, end-to-end encrypted texts are not necessarily going to help. Signal, for example, lets users set automatic disappearing messages after a certain time frame, a function that should be always be turned on for conversations with sources who may be in danger of investigation. Metadata can still give the government a lot of information—though it’s unclear what “encrypted messaging app” the journalist and source used in this case—and Signal stores less metadata than, for instance, WhatsApp.)

The complaint contains an interesting allegation, albeit one buried in a footnote: Edwards, according to prosecutors, told investigators she considered herself a “whistleblower.” The government also admitted she had filed a whistleblower complaint within her agency and had talked to Congressional staffers about the issue as well. The government contends the whistleblower complaint was unrelated to the case, but it’s hard to tell for sure since, so far, we only have the government’s side of the story.

As Adam Klasfeld at Courthouse News noted, The New Yorker’s Ronan Farrow also wrote an important story about SARs information, involving Trump’s personal lawyer Michael Cohen, at around the same time. Farrow noted in his story that, “According to FinCEN, disclosing a SAR is a federal offense, carrying penalties including fines of up to two hundred and fifty thousand dollars and imprisonment for up to five years. The official who released the suspicious-activity reports was aware of the risks but said fears that the missing reports might be suppressed compelled the disclosure.” [Emphasis added.]

As far as I can tell, Farrow’s story is not mentioned in the government’s complaint. But it shows how important whistleblowers can be to the public interest—even when they are breaking the law.

Sources frequently risk their careers and sometimes their freedom to get important information to citizens. It’s hard to quantify how many times the Trump administration has been the subject of an exposé in the media that contains information the government considers a crime to leak. But often these stories are the most important to get to the public.

Leak investigations strike at the heart of the press’s job. We should all consider this growing crackdown on leaks a danger to investigative journalism and stick up for the alleged sources involved. The laws involved almost never provide whistleblowers any public interest defense. The Justice Department reportedly has dozens of other investigations open, and we don’t know who will be next.

Trevor Timm is the executive director of Freedom of the Press Foundation, a non-profit organization that supports and defends journalism dedicated to transparency and accountability. He is also a twice-weekly columnist for the Guardian, where he writes about privacy, national security, and the media.