Rod Rosenstein was a #Resistance hero—and one of Donald Trump’s favorite whipping boys—for overseeing the Russia investigation. But Rosenstein’s legacy at the Justice Department shows he was more than happy to oblige the White House on one of its top priorities: spearheading the president’s war on leakers and whistleblowers.
Cases involving the leak of classified information are high-profile prosecutions that would be part of the purview of any deputy attorney general. But former Justice Department officials tell The Daily Beast that Rosenstein was deeply involved in bringing the cases as a result of both pressure from the White House and a personal view of the importance of prosecuting unauthorized disclosures.
“There was no mistaking the fact that the White House was pressing the department to crack down harder on leaks and as a result we found ourselves meeting regularly with Rod to discuss our leaks docket: where we were in the given case, what the challenges were, what our next steps were,” David Laufman, a partner at Wiggin & Dana who served as head of the DOJ’s Counterintelligence and Export Control Section, told The Daily Beast. “Suffice it to say they were more frequent than once a month, maybe not as frequent as once a week.”
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The Justice Department’s record of prosecutions under Rosenstein in just two years shows how aggressively he pursued cases. In his final week in office, the Justice Department charged former intelligence analyst Daniel Everette Hale under the Espionage Act with leaking classified information to the press. That case brought the tally of those prosecuted for leak-related offenses to seven, according to the U.S. Press Freedom Tracker, which tracks prosecutions on behalf of First Amendment advocacy groups.
In just two years, the Trump administration has come close to prosecuting the same number of cases as Team Obama, which prosecuted 10 government employees and contractors with similar offenses over the course of two terms. If the current pace of prosecutions holds, this administration is on track to surpass Obama’s tally by the end of a single term.
It’s a data point that may surprise Trump’s #Resistance critics. Rosenstein became a folk hero to that crowd during the Mueller probe for vocally defending the integrity of the Justice Department and sparring with congressional Republicans looking to seize sensitive material related to Robert Mueller’s work. Rosenstein even got a standing ovation at the Aspen National Security Forum last July, where national-security elites leapt to their feet to cheer his perceived willingness to take on Trump.
The truth is that, quietly, he took on Trump’s foes.
Under the Trump administration, agencies’ referrals of alleged leaks of classified information for consideration by the Justice Department have skyrocketed. The Justice Department fielded an annual average of 104 referrals in the first two years of Trump’s presidency, compared to an annual average of 39 under Obama.
That pace may be driven at least in part by a perceived increase in high-profile leaks. Russian meddling in the 2016 election and suspicions about the Trump campaign’s relationship with Moscow prompted a number of intelligence leaks since the new administration came into office, including the revelation early in Trump’s tenure that the intelligence community had secretly intercepted Michael Flynn’s conversations with then-Russian Ambassador Sergey Kislyak.
Trump also responded to those leaks by turning on America’s permanent national-security establishment—which he dubbed the “deep state.” He accused the intelligence agencies of trying to foment a coup against him by releasing embarrassing information about communications between his team and Russian nationals. Ironically, Rosenstein flirted with something like a coup attempt: The New York Times broke the news that he discussed using the 25th Amendment, a little-known constitutional provision, to oust the president shortly after Trump fired then-FBI Director Jim Comey. Rosenstein’s allies anonymously maintain he was joking, but others—including then-top FBI lawyer Lisa Page—took him seriously. Regardless, Rosenstein ultimately encouraged the prosecutions that resulted in the incarceration of multiple members of the “deep state.”
At the same time, Trump’s attacks on the media hit a fever pitch. On the campaign trail, he regularly lambasted the traveling press corps. And NBC News correspondent Katy Tur wrote in a memoir that she had to have security escort to her car after Trump rallies because of menacing Trump fans. Into the presidency, Trump’s tune persisted. He regularly calls the media “the enemy of the people,” has called for making it easier to sue reporters, and even has gone after critical reporters and commentators at Fox News—a network he watches tirelessly.
So it’s little surprise that deliberate strategy and resourcing decisions by senior officials in the Trump administration have played a role in the leak crackdown. Attorney General Jeff Sessions used an August 2017 press conference to decry the “staggering number of leaks” in government. He announced that under his leadership the Justice Department had tripled the number of active leak investigations carried out during the Obama administration. The department, he pledged, would dedicate more resources to such cases, and Rosenstein and FBI Director Christopher Wray would “actively monitor the progress of each and every case.”
Rosenstein took that to heart, according to Laufman, whose role included overseeing leak cases.
“We’re going to devote more resources, reevaluate procedures, and make sure we investigate every one of those leaks,” Rosenstein told Fox News Sunday after his appearance and pledged to devote “whatever resources are necessary to get [leaks] under control.”
“It was enhanced pressure from the new administration as transmitted to us by department leadership,” Laufman said. “In essence, the department was being held more acutely and urgently accountable for undertaking and pursuing these investigations.”
A few months after the Sessions press conference, documents obtained by The Young Turks show that the FBI’s counterintelligence division sought resources to establish a new unit to deal with the “complicated nature of—and rapid growth in—unauthorized disclosure and media leak threats.”
“We did have to obtain some additional resources to augment our staffing but at no time did it feel like our ability to focus on other important problems was compromised by the enhanced focus on leak investigations,” according to Laufman, who said the heightened priority didn’t strain resources from other national-security priorities in the Justice Department.
Rosenstein’s willingness to take on leak cases isn’t a recent phenomenon. In 2012, Obama Attorney General Eric Holder appointed him to oversee the prosecution of former vice chairman of the Joint Chiefs of Staff, Gen. James Cartwright, for telling The New York Times about the National Security Agency’s development of the Stuxnet malware, which disrupted operations in Iran’s nuclear program. Cartwright pleaded guilty to lying to the FBI about his interactions with the Times and another reporter in October 2016. Rosenstein recommended Cartwright serve two years in prison, but President Obama pardoned him in his final days in office.
“He feels strongly, as most prosecutors do, that when there’s highly sensitive classified information that’s leaked, if it’s possible to prosecute, it should be investigated with an eye toward doing so,” said Mary McCord, a Georgetown law professor who spent years in the Justice Department and ended her time there as head of its National Security Division.
News organizations, civil libertarians, and First Amendment advocates blasted Holder in 2013 when the Justice Department revealed that it had obtained phone records of reporters from the AP and Fox News while investigating the leak of information about an al Qaeda bomb plot in Yemen and a North Korean nuclear test. The pushback led Holder to revise the guidelines for grabbing reporters’ call records and he listed the James Rosen subpoena as one of the biggest regrets of his tenure.
Rosenstein does not appear to feel as conflicted about the practice. After the August 2017 press conference, he told Fox News that the department would review Holder’s revisions to the guidelines. “It’s possible he got it exactly right, but maybe he didn’t,” Rosenstein said. “I think it’s important for us to take a fresh look at it and evaluate whether or not there are any improvements that should be made.”
In January, The Hill reported that Rosenstein had supervised an effort to loosen the Justice Department guidelines. Among the “improvements” the department reportedly pushed for was to make it easier to subpoena records from reporters and allow prosecutors not to notify publishers when they’ve gotten their hands on reporters’ data.
Laufman said that while Rosenstein believed in the importance of going after leakers, the drumbeat of White House insistence also played a role in his zeal.
“It’s not that we suddenly became more ‘serious’ about it. We were never unserious about it. We had a steady stream of cases we were examining in the last two years of the Obama administration,” he told The Daily Beast. “The only thing that changed was kind of express, ratcheting-up of pressure on us to do more and to do it faster from the administration, punctuated by some new leak cases that required the allocation of resources and which fed the fervor at the White House to crack down even harder on leaks.”
Some of the most prominent leaks over the past two years haven’t involved the disclosure of classified information, but still embarrassed Trump. Federal prosecutors in New York and San Francisco charged Natalie Mayflower Sours Edwards, a Treasury Department employee, and John Fry, an IRS analyst, with leaking suspicious activity reports about the bank account Michael Cohen used to pay hush money to Trump’s alleged mistresses. Suspicious activity reports aren’t classified, but the Bank Secrecy Act bars their disclosure.
The path from the publication of classified information to an investigation and prosecution is a complicated one, former law-enforcement officials say, and most cases where the government thinks a leak may have happened don’t end in an investigation.
Agencies in the national-security bureaucracy that are the original classification authority—those who originally deemed the information classified—make referrals to the Justice Department when they believe a leak has taken place. As part of that process, agencies answer 11 questions designed to help investigators and prosecutors decide whether a case is possible or appropriate. Questions include the classification level of information disclosed, whether the information constituted National Defense Information—a key threshold for prosecution under the Espionage Act—and how broadly the information was distributed within government.
That last question, former officials, say is particularly important in determining whether to proceed with an investigation. Many cases run aground against the broad availability of published information within government, making investigations difficult.
At times, the sensitivity of classified information disclosed can make agencies gun-shy about pursuing a case. In some situations, McCord told The Daily Beast, agencies will tell the Justice Department “No, we just can’t have you prosecute that because to prosecute would mean we would have to actually confirm that indeed the leaked information was true.” That raises the risk of confirming intelligence the government would rather remain at least somewhat uncertain.
But the Trump administration’s aggressive pursuit of critics, combined with its crackdown on leakers, has made even some in law enforcement if not change their minds about leaks, at least appreciate those on the receiving end of them a little more.
“I want to be clear that I am expressing disapproval of leaks of classified information. Not only are they unlawful but they can do considerable harm,” Laufman clarified. “But given what we have observed to be how this particular administration exercises its power and from time to time abuses its discretion to exercise power as a general proposition, we as a country should be grateful and do everything necessary to support a press corps that is doing its hardest to hold government officials accountable.”
