Why You Should Know About “Pleaks”: U.S. Government Historically “Leaks Like a Sieve”

Donald Trump has called Jim Comey a “leaker,” and also cast aspersions on other “leakers.” Is leaking an offense? What’s the history of leaks?

In 2013, Prof. David Pozen published a law review article that took up these questions. He found that leaks from the executive branch are common, strategic, and long-standing, as are unwanted leaks and also some leaks that cross the legal line. He calls many of these leaks "pleaks" because they serve a public purpose.

Here is the summary of Prof. Pozen’s fascinating article, "The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information,” published in Harvard Law Review:

Abstract

The United States government leaks like a sieve. Presidents denounce the constant flow of classified information to the media from unauthorized, anonymous sources. National security professionals decry the consequences. And yet the laws against leaking are almost never enforced. Throughout U.S. history, roughly a dozen criminal cases have been brought against suspected leakers. There is a dramatic disconnect between the way our laws and our leaders condemn leaking in the abstract and the way they condone it in practice.

This Article challenges the standard account of that disconnect, which emphasizes the difficulties of apprehending and prosecuting offenders, and advances an alternative theory of leaking. The executive branch's “leakiness” is often taken to be a sign of organizational failure. The Article argues it is better understood as an adaptive response to external liabilities (such as the mistrust generated by presidential secret keeping and media manipulation) and internal pathologies (such as overclassification and bureaucratic fragmentation) of the modern administrative state. The leak laws are so rarely enforced not only because it is hard to punish violators, but also because key institutional actors share overlapping interests in maintaining a permissive culture of classified information disclosures. Permissiveness does not entail anarchy, however, as a nuanced system of informal social controls has come to supplement, and all but supplant, the formal disciplinary scheme. In detailing these claims, the Article maps the rich sociology of governmental leak regulation and explores a range of implications for executive power, national security, democracy, and the rule of law.

Photo Credit: Newseum Institute