Depends on the leak, one supposes, and who benefits from it. In the wake of the Department of Justice decision not to prosecute James Comey for leaking materials later classified to the New York Times, Judicial Watch received records on 14 referrals for leaks by other FBI personnel. In most cases, the FBI and DoJ took lesser action than recommended by investigators, and they’d like to know why:
Judicial Watch announced today it received records of 14 referrals of Federal Bureau of Investigation (FBI) employees to the organization’s Office of Professional Responsibility (OPR) for the unauthorized disclosure of sensitive or classified information. The disclosure comes on the heels of Judicial Watch’s uncovering a FBI report detailing fired FBI Director James Comey kept FBI documents on President Trump at his house. Comey also admitted to leaking these documents.
Although the FBI’s OPR does not have its own website, according to the DOJ’s OPR, leak allegations may come, “from a variety of sources, including U.S. Attorney’s offices and other Department components, courts, Congress, media reports, other federal agencies, state and local government agencies, private citizens, private attorneys, criminal defendants, civil litigants, and self-referrals. OPR also regularly conducts its own searches to identify judicial findings of misconduct against Department attorneys.”
According to the DOJ’s OPR, it “investigates certain misconduct allegations involving federal law enforcement agents when they relate to a Department attorney’s alleged professional misconduct, as well as claims of reprisal against FBI whistleblowers.” “If OPR finds professional misconduct in a particular case, a different office—the Professional Misconduct Review Unit—reviews OPR’s findings and determines the appropriate discipline.” Final recommendations are given to “the appropriate office.”
It’s a small sample, but it does appear that the FBI tended to treat its employees a bit more leniently than OPR recommended. None of these resulted in prosecution for leaking sensitive or classified information, but then again, it doesn’t appear that OPR recommended any such action, either. These referrals were between the various bureaus within the DoJ, not to prosecutors. At least in these 14 examples, some measure of disciplinary action resulted from the disclosures, including termination in three cases. A couple of recommendations for termination that wasn’t followed was commuted to 45- and 60-day unpaid suspensions instead.
In that sense, Andrew McCabe’s fate (thus far) actually lands on the tougher end of the spectrum. Judicial Watch’s Tom Fitton scolds the FBI for not making the disincentives to leak much more clear:
“No wonder the FBI was leaking so profusely. Collectively, these documents show lenient treatment for evident criminal activity. Only four of the 14 employees found to have made an unauthorized disclosure were dismissed from the FBI,” said Judicial Watch President Tom Fitton. “And even though Andrew McCabe was fired and referred for a criminal investigation for his leak, no prosecution has taken place.”
That’s certainly arguable. After all, in at least a couple of cases, the violations appear to cross the line between professional conduct violations and actual criminal conduct, notably McCabe’s. “Unprecedented challenges and pressures,” the mitigating factors listed in his case, is more of a defense for sentencing rather than guilt. McCabe could still face prosecution, depending on what further referrals might result from Michael Horowitz’ inspector-general investigation.
For the most part, though, these appear to be more within the professional-conduct realm rather than criminal violations. The FBI and the OPR might need to take those more seriously too, especially since the FBI routinely conducts leak investigations with an eye toward criminal prosecution. That sets up a big credibility issue. Termination sends a much clearer signal than a few extra vacation days and a strongly worded memo. These cases might not have warranted prosecution, but leaks are leaks. Make it a firing offense, and you’ll have fewer of them.