Trump, of course, might reject the status quo and order Attorney General Jeff Sessions to mount a hammer and tongs foray against the press and leakers, as Washington Post columnist Margaret Sullivan recently warned. But there is scant precedent for such a crackdown, and for good reason. To chase down journalists, Trump and Sessions would have to weaken the Department of Justice guidelines that protect reporters from such investigations. Would the political costs of trashing the guidelines and stalking the leakers be worth it, especially in cases where no vital secrets have been revealed? Government reluctance to go nuclear in the prosecution of leaks to journalists has frequently been ascribed to fear that the anti-leaking laws—which are essential in the prosecution of spies and traitors—could be weakened by the Supreme Court if First Amendment questions were to be raised.
Rather than frightening reporters or alarming leakers, all the Trump-style shouting about leaks has the perverse effect of encouraging them. Leak recipients find their reputations expanded, Pozen wrote, making them “not so much shunned as courted.” Leakers become emboldened. In some cases, the more dramatic the leak, the less eager the agency victimized by the leak is to assist in its prosecution. “Victim agencies” routinely decline to assist in federal investigations, as my colleague Josh Gerstein wrote in 2007, fearing that the cases will require the release of additional secrets to make it stick. Other times, leak investigations may stall because they point to top officials in the victim agency. The result is the closing of the cases. “The vast majority of entities within the U.S. government that work on national security-related issues have effectively opted out of the criminal enforcement regime for leaks,” Pozen wrote.