Executive Power and the Presidential Leak

Stories today misleadingly say that Bush authorized a leak of classified information. There can be no leaks of classified information by the President under any set of circumstances. He gets to decide what’s classified and when he distributes information it is not a leak but an authorized executive act. These stories are thoroughly confused.

First, the stories mostly say that Bush authorized a leak in relation to the Valerie Plame affiar. Without reading on, one might conclude that Bush mean-spiritedly attempted to discredit administration critic Joseph Wilson by leaking his wife’s status as a CIA desk jockey, potentially ruining her career. But the leak did not relate to her status at the CIA but instead to National Intelligence Estimate information that refuted his charges that Iraq did not obtain or attempt to obtain yellowcake uranium in Africa. Distributing such information is perfectly legitimate if one recognizes that an administration pursuing a war it believes to be in the country’s best interests is entitled to refute its critics and shore up public support in any way it sees fit. Because this leak occurred in July of 2003, it is doubly disingenuous to criticize any leak because the chief beneficiary of such knowledge, the Iraqi regime, had already passed from the scene.

Second, the leak cannot be a leak precisely because the president authorized it. He gets to decide what is classified or not and to distribute any information he chooses. There is no CIA authority over the President in this regard. They are instead acting under his executive authority. It is a very different situation when a staffer or official acting on his own initiative “leaks” something that is classified. He is, in that instance, disobeying the executive and his delegates. But the President cannot leak anything. It’s like saying that the President and CEO of a sole proprietorship is “stealing” when he takes money out of the register. Nothing in 18 USC Sections 794 and 793 says anything to the contrary; both statutes define classified information in terms of distributing documents and codes and other information to “any person not entitled to receive it.” The statute cannot override the presidential prerogative to entitle anyone to see any government document or information.

Three, it would be illogical to call this a leak in any case. Such a reading of the statute would make authorized Department of Defense announcements of new military contracts, military events, or other war news a leak as well. And the Secretary of State’s discussions of high level diplomatic talks would also be a leak. Leaks only can occur when people unauthorized to say something release information contrary to administration policy. Such a “leak” is logically impossible when it comes from the president.

The media is clearly using the word leak ambiguously and illogically to confuse something bad (the leak of Plame’s name) for something that isn’t (distribution of information to refute critics) and, in any event, is legal in both instances. The Plame story is a completely uninteresting and distorted joke of little import, other than to the narcissistic couple who are now very rich on account of their lives supposedly being ruined.