Criminal Prohibitions on Leaks and Other Disclosures of Classified Defense Information

September 10, 2010 – May 11, 2023 R41404

Criminal Prohibitions on Leaks and Other
May 11, 2023
Disclosures of Classified Defense Information
Stephen P. Mulligan
High-profile leaks and disclosures of protected government information have prompted frequent
Legislative Attorney
congressional interest in the criminal penalties for disclosing government secrets. In one recent

case, a U.S. Air National Guardsman allegedly posted photographs on social media of documents
Jennifer K. Elsea
that, according to media outlets, contained classified information about the Russia-Ukraine war
Legislative Attorney
and other international affairs.

No single statute criminalizes all unauthorized disclosure of protected government information.

Rather, the legal framework is based on a complex and often overlapping set of statutes or
individual provisions within statutes, which are outlined in this report. Criminal prosecutions arising from unauthorized
disclosures frequently focus on the Espionage Act, with specific charges varying based on certain factors. Successful
prosecutions can result in punishments ranging from severe penalties and imprisonment for “classic spying” cases (when an
individual collects information in an effort to provide aid to a foreign government) to less severe penalties for cases such as
failing to report that protected information has been mishandled or lost.
Historically, the United States has prosecuted under the Espionage Act and related statutes (1) individuals with access to
classified information (and a corresponding obligation to protect it) who make it available to foreign agents and (2) foreign
agents who obtain classified information unlawfully while present in the United States. The United States has also prosecuted
individuals claiming an altruistic desire to expose protected information to the public based on their belief that the public
good favors transparency into particular government activities. While not every prosecution against an alleged
“whistleblower” has been successful, no individual has been acquitted on the grounds that the public interest in the leaked
information was so significant as to justify an otherwise unlawful disclosure.
Some have questioned whether the Espionage Act covers only initial disclosure of protected information or whether it also
criminalizes the receipt and publication of that information by third parties, such as the press. The United States has never
prosecuted a traditional news organization for receiving and publicizing leaked information, but it has extended its
prosecution efforts to the individual not responsible for the initial disclosure. This report examines prosecutions of
individuals who leak information to the press or policy organizations, such as lobbying groups and think tanks, as well as
civil and criminal actions that have been brought against the recipients of leaked information.
Prosecutions and legal proceedings arising out of leaks may also implicate First Amendment issues regarding freedom of
speech and freedom of the press. At the same time, exposure of protected information may harm U.S. national security.
Because these cases can raise First Amendment concerns regarding freedom of speech and freedom of the press, the
constitutional framework relevant to prosecutions and other legal proceedings filed as a result of leaked classified
information is also analyzed in this report, discussing ways Members of Congress who are evaluating criminal prohibitions
on disclosures of protected information may seek to balance these competing interests within the constitutional framework.
Lastly, this report provides a summary of previous legislative efforts to criminalize the unauthorized disclosure of classified
information and to address potential gaps or ambiguities in current statutes. Members may also consider past proposals for
legislative changes to the Espionage Act.

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eaks1 and other unauthorized disclosures of protected government information have drawn
recurring congressional interest to the criminal penalties for disclosing government
L secrets.2 No single statute criminalizes all unauthorized disclosure of protected
government information.3 Rather, the legal framework is based on a complex and often
overlapping set of statutes or individual provisions within statutes. Criminal prosecutions arising
from unauthorized disclosures frequently focus on the Espionage Act, with specific charges
varying based on factors such as what information was released, to whom it was given, and the
discloser’s intentions.4 Charges against these individuals can range from serious offenses for
“classic spying” cases (when an individual collects information to aid a foreign government) to
less severe offenses, such as the failure to report that protected information has been mishandled
or lost.5
Historically, the criminal statutes prohibiting the disclosure of protected information have been
used largely to prosecute (1) individuals with access to classified information (and a
corresponding obligation to protect it) who make it available to foreign agents and (2) foreign
agents who obtain classified information unlawfully while present in the United States.6 In recent
years, some prosecutors have brought charges against individuals under the Espionage Act and
related statutes for providing classified information to news outlets and other organizations even
when the accused “leaker” claimed to have a salutary motive of wanting to influence public
opinion or expose potentially useful information about government programs.
This report examines U.S. statutes that create criminal penalties for disclosing classified and other
protected government information. It discusses select high-profile prosecutions of individuals
accused of disclosing information, including prosecutions for those who disclose such
information to the press and other groups. Next, this report examines civil and criminal actions
against the recipients of leaked information. Because these matters raise First Amendment
questions regarding freedom of speech and freedom of the press, the constitutional framework

1 U.S. law does not define leak, and there is no agreed-upon definition of the term in academic literature. This report
uses leak in the colloquial sense to refer to intentional disclosures of protected government information by an
individual inside or previously inside the government, such as an employee, former employee, or contractor to the
media or the public by other means. For a discussion on the disagreement on the term’s definition and scope, see David
E. Pozen, The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information,
127 HARV. L. REV. 512, 521 (2013) (providing a “working definition” of leak as “(i) a targeted disclosure (ii) by a
government insider (employee, former employee, contractor) (iii) to a member of the media (iv) of confidential
information the divulgence of which is generally proscribed by law, policy, or convention (v) outside of any formal
process (vi) with an expectation of anonymity”). The report does not address other unauthorized disclosures, such as
providing classified information to a foreign agent.
2 See, e.g., Secrecy Orders and Prosecuting Leaks: Potential Legislative Responses to Deter Prosecutorial Abuse of
Power, Hearing Before H. Comm. on the Judiciary, 117th Cong. (2021) [hereinafter Secrecy Orders Hearing];
Espionage Act and the Legal and Constitutional Issues Raised by WikiLeaks: Hearing Before the H. Comm. on the
Judiciary, 111th Cong. (2010) [hereinafter House Judiciary WikiLeaks Hearing]; Media Leaks of Classified
Information, Hearing Before H. Permanent Select Comm. on Intel., 109th Cong. (2006); Examining DOJ’s
Investigation of Journalists Who Publish Classified Information: Lessons from the Jack Anderson Case, Hearing
Before S. Comm. on the Judiciary, 109th Cong. (2006); Espionage Laws and Leaks: Hearings Before H. Permanent
Select Comm. on Intel., Subcomm. on Legis., 96th Cong. (1979).
3 Commentators frequently contrast the varied set of U.S. laws with the United Kingdom's Official Secrets Act, 1989, c.
6 (UK), which more broadly criminalizes the dissemination and retention of numerous classes of government
information. See, e.g., William E. Lee, Deep Background: Journalists, Sources, and the Perils of Leaking, 57 AM. U.L.
REV. 1453, 1466–67 (2008); Pozen, supra note 1Error! Bookmark not defined., at 626.
4 See infra §§ “The Espionage Act; Mens Rea Requirements.”
5 Compare infra § “The Espionage Act.” with infra § “Mens Rea Requirements.”
6 See, e.g., Pozen, supra note 1, at 554 (“The majority of Espionage Act prosecutions have, appropriately enough,
involved espionage, incidents in which an official passed confidential information to a foreign power.”).
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relevant to prosecutions and other legal proceedings filed as a result of leaked information is also
analyzed in this report. Lastly, this report summarizes a select set of legislative proposals to
amend the Espionage Act and related statutes to address potential gaps or ambiguities in current
law.
Statutory Protection of Classified Information
While there is no single statute that criminalizes the unauthorized disclosure of any classified
information, a patchwork of statutes protect information depending upon its nature, the identity of
the discloser and of those to whom it was disclosed, the purpose of disclosure, and the means by
which the information was obtained. One broad category of information—national defense
information—is protected by the Espionage Act,7 while other types of relevant information are
covered elsewhere in various provisions of the U.S. Code.8 Some provisions apply only to
government employees or others who have authorized access to sensitive government
information,9 but many apply to all persons.10 Analysis of which statutory authorities are
applicable to an unauthorized disclosure of classified information is likely to depend on the
precise circumstances of the disclosure.11
The Espionage Act
Originally enacted upon the United States’ entry into World War I,12 the Espionage Act is one of
the U.S. government’s primary statutory vehicles for addressing the disclosure of classified
information.13 The act is now codified as amended, in relevant part, in 18 U.S.C. Sections 793–
798.14 Each section provides for criminal prohibitions on gathering, handling, or transmitting
information or other material “relating to the national defense”15—commonly referred to as

7 Espionage Act of 1917, ch. 30, 40 Stat. 217 (codified as amended, at 18 U.S.C. §§ 793–798).
8 See infra § “Other Relevant Statutes.”
9 E.g., 18 U.S.C. §§ 952 (prohibiting disclosure of diplomatic codes and correspondence), 1924 (unauthorized removal
and retention of classified documents or material); 50 U.S.C. § 783 (unauthorized disclosure of classified information
to an agent of a foreign government, unauthorized receipt by foreign government official).
10 E.g., 18 U.S.C. §§ 793, 794, 798.
11 See, e.g., Harold Edgar & Benno C. Schmidt, Jr., The Espionage Statutes and Publication of Defense Information, 73
COLUM. L. REV. 929, 938–39 (1973) (identifying “major questions” must be answered before determining which
statutory provisions may apply to the unauthorized disclosure of information: (1) the type of revelation or
communication at issue, (2) the state of mind (or intent) of the person disclosing the information, and (3) the nature of
the information that was communicated).
12 See Stephen I. Vladeck, Inchoate Liability and the Espionage Act: The Statutory Framework and the Freedom of the
Press, 1 HARV. L. & POL’Y REV. 219, 221 (2007). For much of the nation’s history prior to World War I, disclosure of
government secrets was prosecuted under more generally applicable statutes punishing treason, entry onto military
bases, and theft of government property. United States v. Rosen, 445 F. Supp. 2d 602, 611 (E.D. Va. 2006) (citing
Edgar & Schdmidt, supra note 11, at 940).
13 See, e.g., Margaret B. Kwoka, Leaking and Legitimacy, 48 U.C. DAVIS. L. REV. 1387, 1413–14 (2015); Pozen, supra
note 1, at 554. For more discussion of legal issues and interpretation related to the Espionage Act, see Fern L. Kletter,
Validity, Construction, and Application of the Federal Espionage Act, §§ 793 to 794, 59 A.L.R. Fed. 2d 303 (2016).
14 18 U.S.C. § 799, which was enacted as part of the National Aeronautics and Space Act of 1958, P.L. § 85-568 §
302(c), 72 Stat. 426, 434, is also included in the Espionage and Censorship chapter of the U.S. Code. This provision
criminalizes certain violations of National Aeronautics and Space Administration (NASA) regulations related to
protection or security of certain facilities, aircraft, spacecraft, and other property. See 18 U.S.C. § 799.
15 The statutes address “information respecting the national defense[,]” “information relating to the national defense[,]”
and certain documents, maps, and other physical items “connected with the national defense.” 18 U.S.C. §§ 973(a)–(e);
§ 794(a).
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national defense information16—and other protected classes of documents, material, or
information defined by statute.17
The Espionage Act does not expressly address what constitutes information that is sufficiently
related to national defense to fall within its ambit. However, in a 1941 decision, Gorin v. United
States, the Supreme Court explained that “national defense” is a “generic concept of broad
connotations, relating to the military and naval establishments and the related activities of
national preparedness.”18 While it is not necessary that a government agency mark information as
classified in order for it to be protected under the Espionage Act, courts seem to give deference to
the executive determination of what constitutes national defense information.19 The act has been
challenged on several occasions under the theory that the term national defense information is
unconstitutionally vague and overbroad,20 but the Gorin Court held that the mental state or mens
rea requirements in the act, discussed below,21 had a “delimiting” effect that gave what were
otherwise potentially problematic terms sufficient definitiveness to pass constitutional muster.22
Section 793: General Protection of National Defense Information
The first provision of the Espionage Act, 18 U.S.C. § 793, prohibits certain activities related to
gathering, receiving, or transmitting national defense information to one “not entitled to receive
it.”23 Section 793(a) prohibits obtaining information concerning a series of national defense
installations (i.e., physical places) “with intent or reason to believe that the information is to be
used to the injury of the United States, or to the advantage of any foreign nation.”24 Similarly,
Section 793(b) prohibits individuals with “like intent or reason to believe” from obtaining or
duplicating any “sketch, photograph, photographic negative, blueprint, plan, map, model,
instrument, appliance, document, writing, or note of anything connected with the national
defense.”25

16 See, e.g., United States v. Rosen, 445 F. Supp. 2d 602, 607 (E.D. Va. 2006); United States v. Safford, 40 C.M.R.
528, 532 (A.C.M.R. 1969); William E. Lee, Probing Secrets: The Press and Inchoate Liability for Newsgathering
Crimes, 36 AM. J. CRIM. L. 129, 168 (2009).
17 Although the Espionage Act is divided into discrete sections, observers have noted that its provisions can be seen as
overlapping. See, e.g., Vladeck, supra note 12, at 222. Over the years, courts and commentators have criticized the
Espionage Act as “excessively complex, confusing, indeed impenetrable.” Rosen, 445 F. Supp. 2d at 613 (citing
various judicial opinions and scholarly commentaries).
18 312 U.S. 19, 28 (1941).
19 The government must demonstrate that disclosure of a document is at least “potentially damaging” to the United
States or advantageous to a foreign government. See United States v. Morison, 844 F.2d 1057, 1073 (4th Cir. 1988),
cert. denied, 488 U.S. 908 (1988) (upholding conviction under 18 U.S.C. § 793 for delivery of classified photographs
to publisher). Whether the information is “related to the national defense” under this meaning is a question of fact for
the jury to decide. Id. At least one judge has held that in the case of a disclosure of intangible information, the
government needs to prove only that the defendant has reason to believe that such information is potentially damaging,
which, in the case of a person with access to classified information, can largely be inferred from the fact that
information is classified. See United States v. Kiriakou, 898 F. Supp. 2d 921, 922 (E.D. Va. 2012) (scienter
requirement heightened in the case of disclosure of intangible national defense information); id. at 925 (noting that
defendant was a “government employee trained in the classification system who could appreciate the significance of
the information he allegedly disclosed”).
20 See, e.g., Gorin, 312 U.S. at 23; Morison, 844 F.2d at 1063.
21 See infra § “Mens Rea Requirements.”
22 Gorin, 312 U.S. at 27–28.
23 18 U.S.C. § 793.
24 Id. § 793(a).
25 18 U.S.C. § 793(b).
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Subsection (c) of Section 793 creates criminal liability for an individual who “receives or obtains
or agrees or attempts to receive or obtain” certain material related to national defense when the
individual knows or has reason to believe that the material has been or will be “obtained, taken,
made, or disposed of by any person contrary to the provisions of” the Espionage Act.26 Thus,
whereas subsections (a) and (b) criminalize collecting or copying national defense information,
subsection (c) prohibits its receipt so long as the recipient has (or should have) knowledge that
the source violated another provision of the Espionage Act in the course of obtaining the
information.27
Subsections (d) and (f) of Section 793 prohibit the dissemination of certain material and
information relating to the national defense that is in the lawful possession of the individual who
disseminates it. Subsection (d) prohibits willful dissemination,28 and subsection (f) prohibits
dissemination or mishandling through gross negligence.29 Subsection (f) also applies when the
lawful possessor of national defense information “fails to make prompt report” of its loss or
theft.30 When an individual has unauthorized possession of certain material or information related
to the national defense, Section 793(e) prohibits its willful disclosure.31
Violators of any provision in Section 793 are subject to a fine or up to ten years of imprisonment,
or both,32 as are those who conspire to violate the statute.33
Section 794: “Classic Spying” Cases
Section 794 of Title 18 covers “classic spying” cases in which a defendant gathers or delivers
national defense information or materials for use by foreign governments.34 More specifically,
Section 794 penalizes anyone who transmits information or certain material related to the national
defense to a foreign government, a foreign political party, or a foreign military party with the
intent or reason to believe it will be used to the injury of the United States or the advantage of a
foreign nation.35 Section 794 thus primarily differs from Section 793 by focusing on a more
limited category of recipients—agents of foreign governments.36 Section 794(b), which is
applicable only “in time of war,” further prohibits attempts to elicit information related to the
public defense “which might be useful to the enemy.... ”37 Subsection (c) makes it a crime to
conspire to violate the provisions of Section 794.38

26 Id. 793(c).
27 Compare 18 U.S.C. § 793(a)–(b) with id. § 793(c). See also Vladeck, supra note 12, at 222–23.
28 18 U.S.C. § 793(d).
29 Id. § 793(f).
30 Id.
31 Id. § 793(e).
32 Id. § 793(f).
33 Id. § 793(g).
34 United States v. Morison, 844 F.2d 1057, 1065 (4th Cir.), cert. denied, 488 U.S. 908 (1988) (“Manifestly, section
794 is a far more serious offense than section 793(d); it covers the act of ‘classic spying’; and, because of its
seriousness, it authorizes a far more serious punishment than that provided for section 793(d).”).
35 18 U.S.C. § 794.
36 See Morison, 844 F.2d at 1065 (“The two statutes differ—and this is the critical point to note in analyzing the two
statutes—in their identification of the person to whom disclosure is prohibited.”).
37 Id. § 794(b).
38 Id. § 794(c).
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A violation of Section 794 is punishable by imprisonment for any term of years or life or, under
certain circumstances, by a sentence of death.39 The death penalty is available upon a finding that
the offense resulted in the death of an agent of the United States or directly concerns nuclear
weapons or other particularly sensitive types of information.40 The death penalty is also available
for violators who gather, transmit, or publish information related to military plans or operations
and the like during time of war with the intent that the information reaches the enemy.41
Offenders are also subject to forfeiture of any ill-gotten gains and property used to facilitate the
offense.42 In sum, Section 794 treats the transmission of national security information with intent
to aid the enemy or a foreign government more severely than other types of disclosures.43
Sections 795-797: Images of Defense Installations and Equipment
The unauthorized creation, publication, sale, or transfer of photographs or sketches of vital
defense installations or equipment as designated by the President is prohibited by 18 U.S.C.
§§ 795 and 797.44 Similarly, Section 796 prohibits the use of an aircraft for the purpose of
capturing images of a vital defense installation or equipment.45 Violators are subject to fine or
imprisonment for not more than one year, or both.46
Section 798: Certain Classified Information and Cryptographic Systems
Section 798 of Title 18 provides that the knowing and willful disclosure of certain specified types
of classified information (as opposed to national defense information) is punishable by fine,
imprisonment for not more than ten years, or both.47 The provision applies only to certain
categories of classified information, such as information concerning codes, ciphers, cryptographic
systems, or other communications intelligence activities.48 The term classified information is
limited to information that was classified “for reasons of national security.”49 To incur a penalty,
the disclosure must be prejudicial to the safety or interests of the United States or work to the
benefit of any foreign government and to the detriment of the United States.50

39 Id. § 794(a)–(b).
40 Id. § 794(a) (“[T]he sentence of death shall not be imposed unless ... the offense resulted in the identification by a
foreign power ... of an individual acting as an agent of the United States and consequently in the death of that
individual, or directly concerned nuclear weaponry, military spacecraft or satellites, early warning systems, or other
means of defense or retaliation against large-scale attack; war plans; communications intelligence or cryptographic
information; or any other major weapons system or major element of defense strategy.”).
41 See id. § 794(b). In addition, during time of war, any individual who communicates intelligence or any other
information to the enemy may be prosecuted by the military for aiding the enemy under Article 103b of the Uniform
Code of Military Justice (UCMJ), and if convicted, punished by “death or such other punishment as a court-martial or
military commission may direct.” 10 U.S.C. § 903b.
42 18 U.S.C. § 794(d).
43 Compare id. § 794 with id. § 793(h). Accord Mary-Rose Papandrea, National Security Information and the Role of
Intent, 56 WM. & MARY L. REV. 1381, 1382–83 (2015).
44 18 U.S.C. §§ 795, 797.
45 See Id. § 796 (Prohibiting “the use of an aircraft or any contrivance used, or designed for navigation or flight in the
air, for the purpose of making a photograph, sketch, picture, drawing, map, or graphical representation of vital military
or naval installations or equipment.”).
46 Id. §§ 795–797.
47 Id. § 798.
48 Id. § 798(a)–(b).
49 Id. § 798(b).
50 Id. § 798(a).
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Criminal Prohibitions Under the Uniform Code of Military Justice
Members of the military51 who commit espionage akin to the conduct prohibited under 18 U.S.C.
§ 794 may be tried by court-martial for violating Article 103a of the Uniform Code of Military
Justice (UCMJ)52 and sentenced to death if certain aggravating factors are found by unanimous
determination.53 Unlike offenses under Section 794, Article 103a offenses need not have resulted
in the death of a covert agent or involve military operations during war to incur the death penalty.
One of the aggravating factors enabling the imposition of the death penalty under Article 103a is
that “[t]he accused has been convicted of another offense involving espionage or treason for
which either a sentence of death or imprisonment for life was authorized by statute.”54
However, the government is not limited to charging the offense of espionage under Article 103a.
Members can also be tried by court-martial for violating Article 92, failure to obey order or
regulation;55 Article 103b, aiding the enemy;56 or Article 134, the general article.57 Article 134
offenses include “all disorders and neglects to the prejudice of good order and discipline in the
armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and
offenses not capital” that are not enumerated elsewhere in the UCMJ.58 Specifically, clause 3 of
Article 134 (crimes and offenses not capital) may be utilized to try a member of the military for a
violation of applicable federal law—such as 18 U.S.C. § 1030(a), discussed below—not
addressed by the UCMJ.
Other Relevant Statutes
In addition to the Espionage Act and its UCMJ counterparts, other criminal prohibitions in the
U.S. Code have been or potentially could be utilized to prosecute the disclosure of classified
information. 18 U.S.C. § 1030(a)(1) punishes the willful retention, communication, or
transmission of classified information retrieved by means of knowingly accessing a computer
without (or in excess of) authorization, with reason to believe that such information “could be
used to the injury of the United States, or to the advantage of any foreign nation.”59 Receipt of
information procured in violation of the statute is not addressed, but depending on the specific
facts surrounding the unauthorized access, those who did not themselves access government
computers may still be liable conspirators, aiders and abettors, or accessories after the fact.60 The

51 Persons subject to the UCMJ include members of regular components of the Armed Forces, cadets and midshipmen,
members of reserve components while on training, members of the National Guard when in federal service, members
of certain organizations when assigned to and serving the Armed Forces, prisoners of war, persons accompanying the
Armed Forces in the field in time of war or a “contingency operation,” and certain others with military status.
10 U.S.C. § 802(a).
52 Id. § 903a(a).
53 Id. § 903a(b)–(c).
54 Id. § 903a(c).
55 Id. § 892.
56 Id. § 903b.
57 Id. § 934.
58 Id.
59 18 U.S.C. § 1030(a)(1).
60 Charges of conspiracy or aiding and abetting may be available with respect to any of the statutes summarized here,
even if the statutes themselves do not mention such charges under the general conspiracy statute, 18 U.S.C. § 371, or
for aiding and abetting and the like under 18 U.S.C. §§ 2–4, unless otherwise made inapplicable. Some of the
provisions that apply only to government employees or persons with authorized access to classified information may
therefore be applied to a broader set of potential violators. For more information about conspiracy law, see CRS Report
R41223, Federal Conspiracy Law: A Brief Overview, by Charles Doyle.
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provision imposes a fine or imprisonment for not more than 10 years, or both, in the case of a first
offense or attempted violation.61 Repeat offenses or attempts can incur a prison sentence of up to
twenty years.62
Section 641 of Title 18 punishes the theft or conversion of government property or records for
one’s own use or the use of another. While this section does not expressly prohibit disclosure of
classified information, it has been used to prosecute “leakers.”63 Violators may be fined,
imprisoned for not more than 10 years, or both, unless the value of the property does not exceed
$100, in which case the maximum prison term is one year.64 The statute also covers knowing
receipt or retention of stolen or converted property with the intent to convert it to the recipient’s
own use.65 To date, this section does not appear to have been used to prosecute any recipients of
classified information, even when the original discloser was charged under the statute.
The Intelligence Identities Protection Act, 50 U.S.C. § 3121, provides for the protection of
information concerning the identity of covert intelligence agents.66 It generally covers persons
authorized to know the identity of such agents or who learn the identity of covert agents as a
result of their general access to classified information,67 but can also apply to a person who learns
of the identity of a covert agent through a “pattern of activities intended to identify and expose
covert agents” and discloses the identity to any individual not authorized to access classified
information with reason to believe that such disclosures would impair U.S. foreign intelligence
efforts.68 For those without authorized access, the crime is subject to a fine or imprisonment for a
term of not more than three years.69 To be convicted, a violator must have knowledge that the

61 18 U.S.C. § 1030(c).
62 Id. § 1030(c)(1)(B).
63 See United States v. Morison, 844 F.2d 1057 (4th Cir. 1988), cert. denied, 488 U.S. 908 (1988) (photographs and
reports were tangible property of the government); United States v. Fowler, 932 F.2d 306, 310 (4th Cir. 1991)
(“[I]nformation is a species of property and a thing of value” such that “conversion and conveyance of governmental
information can violate § 641”) (citing United States v. Jeter, 775 F.2d 670, 680–82 (6th Cir. 1985)); United States v.
Girard, 601 F.2d 69, 70–71 (2d Cir. 1979). The statute was used to prosecute a Drug Enforcement Agency official for
leaking unclassified but restricted documents pertinent to an agency investigation. See Dan Eggen, If the Secret’s
Spilled, Calling Leaker to Account Isn’t Easy, WASH. POST, October 3, 2003, at A5 (reporting prosecution of Jonathan
Randel under conversion statute for leaking government documents to journalist).
64 18 U.S.C. § 641.
65 Id.
66 The Intelligence Identities and Protection Act of 1982, 50 U.S.C. §§ 3121–26 (formerly codified at 50 U.S.C. §§
421-426). For more information, see CRS Report RS21636, Intelligence Identities Protection Act, by Jennifer K. Elsea.
The term “covert agent” is defined to include a non-U.S. citizen “whose past or present intelligence relationship to the
United States is classified information and who is a present or former agent of, or a present or former informant or
source of operational assistance to, an intelligence agency.” 50 U.S.C. § 3126(4)(C). “Intelligence agency” is defined as
elements of the intelligence community, to include some offices within the Department of Defense, and intelligence
elements of the Army, Navy, Air Force, Marine Corps, and Coast Guard; informant means “any individual who
furnishes information to an intelligence agency in the course of a confidential relationship protecting the identity of
such individual from public disclosure.” Id. § 3126(5)–(6). The definitions may suggest that the act is intended to
protect the identities of persons who provide intelligence information directly to a military counterintelligence unit, but
perhaps could be read to cover those who provide information to military personnel carrying out other functions who
provide situation reports intended to reach an intelligence component. In any event, the extraterritorial application of
the statute is limited to U.S. citizens and permanent resident aliens. Id. § 3124.
67 Persons with direct access to information regarding the identities are subject to a prison term of not more than fifteen
years, while those who learn the identities through general access to classified information are subject to a term not
greater than ten years. 50 U.S.C. § 3121. Charges of conspiracy, aiding and abetting, or misprision of felony are not
available in connection with the offense, except in the case of a person who engaged in a pattern of activities to disclose
the identities of covert agents or persons with authorized access to classified information. 50 U.S.C. § 3122(b).
68 50 U.S.C. § 3121.
69 Id. § 3121(c).
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information identifies a covert agent whose identity the United States is taking affirmative
measures to conceal.70 To date, there has been only one case interpreting the statute,71 and only
two convictions pursuant to guilty pleas have resulted from the statute.72
Section 1924 of Title 18 prohibits the unauthorized removal of classified material by government
employees, contractors, and consultants who come into possession of the material by virtue of
their employment by the government.73 The provision imposes a fine or a prison term of up to
five years, or both, for offenders who knowingly remove material classified pursuant to
government regulations concerning the national defense or foreign relations of the United States
with the intent to retain the materials at an unauthorized location.74
Section 952 of Title 18 punishes employees of the United States who, without authorization,
willfully publish or furnish to another any official diplomatic code or material prepared in such a
code by imposing a fine, imprisonment for up to ten years, or both. The same punishment applies
for materials “obtained while in the process of transmission between any foreign government and
its diplomatic mission in the United States,”75 but not, apparently, for materials obtained during
transmission from U.S. diplomatic missions abroad to the State Department or vice versa.76 The
removal of classified material concerning foreign relations with the intent to store it at an
unauthorized location is a misdemeanor under 18 U.S.C. § 1924, which also applies only to U.S.
government employees.77
Section 783 of Title 50 penalizes government officers or employees who, without proper
authority, communicate classified information to a person who the employee has reason to
suspect is an agent or representative of a foreign government.78 It is also unlawful for the
representative or agent of the foreign government to receive classified information.79 Violation of
either of these provisions is punishable by a fine of up to $10,000 or imprisonment for not more
than ten years.80 Violators are thereafter prohibited from holding federal public office.81 Violators
must forfeit all property derived directly or indirectly from the offense and any property that was
used or intended to be used to facilitate the violation.82

70 Id. § 3121(a)–(c).
71 United States v. Kiriakou, 2012 WL 3263854, at *4 (E.D. Va. Aug. 8, 2012) (rejecting the contention that “the
statute was unconstitutionally vague because the statute does not define the ‘affirmative measures’ that the Government
must take to conceal a covert agent's identity to trigger application of the statute”).
72 See Richard B. Schmitt, Rare Statute Figures in Rove Case, L.A. TIMES (July 15, 2005),
https://www.latimes.com/archives/la-xpm-2005-jul-15-na-rove15-story.html (reporting 1985 conviction of Sharon
Scranage, a clerk for the CIA in Ghana, for disclosing identities of covert agents); Charlie Savage, Former C.I.A.
Operative Pleads Guilty in Leak of Colleague’s Name, N.Y. TIMES (Oct. 23, 2012),
https://www.nytimes.com/2012/10/24/us/former-cia-officer-pleads-guilty-in-leak-case.html. (John Kiriakou pled guilty
to disclosing a colleague’s name to a journalist.)
73 18 U.S.C. § 1924.
74 Id.
75 Id. § 952.
76 Id. Such transmissions may still be covered by the prohibition if the material was, or purports to have been, prepared
using an official diplomatic code. It is unclear whether messages that are encrypted for transmission are covered.
77 See id. § 1924(a).
78 50 U.S.C. § 783(a).
79 Id. § 783(b).
80 Id. § 783(c).
81 Id.
82 Id. § 783(e).
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The Atomic Energy Act of 1954, 42 U.S.C. § 2274, prohibits disclosure of information relating to
nuclear energy and weapons. The act creates criminal penalties for anyone who “communicates,
transmits, or discloses” documents or information “involving or incorporating Restricted Data”
with the “intent to injure the United States” or advantage a foreign nation,83 or who has “reason to
believe such data” would have that effect.84
Finally, 18 U.S.C. § 2381 creates a criminal prohibition on treason punishable by death,
imprisonment, or fine.85 The statute applies when a person “owing allegiance to the United
States” levies war against the country or gives its enemies “aid and comfort”86—a term which has
been interpreted to include transmitting information to foreign agents.87
Mens Rea Requirements
One of the principal—and most complex—distinguishing factors among statutory prohibitions on
the disclosure of protected information, particularly among the various sections of the Espionage
Act, is the use of differing mens rea requirements.88 Latin for “guilty mind,” the term mens rea
refers to the defendant’s mental state of culpability that the government must prove in order to
secure a conviction.89 For instance, some laws require that the prosecution demonstrates that the
defendant intentionally committed the act in question—that is, committed the act with the
conscious desire for the harmful conduct to occur—while others require that the act be done with
a lesser mens rea (e.g., willfully, knowingly, or negligently).90
Mens Rea and the Espionage Act
Sections 793(a)–(c) and 794 of Title 18, U.S. Code (the Espionage Act) require the defendant to
have acted with “intent or reason to believe” that the national defense information at issue “is to
be used to the injury of the United States, or to the advantage of any foreign nation.... ”91 In
Gorin, the Supreme Court concluded that this provision requires the defendant to have acted in
bad faith against the United States.92
Sections 793(d)–(e) and 798 contain dual mens rea elements in certain cases: the defendant must
have (1) acted willfully in the act of disclosing the information and (2) with reason to believe the

83 42 U.S.C. § 2274.
84 Id. § 2274(b).
85 18 U.S.C. § 2381. The treason statute is predicated on Article III, Section 3 of the Constitution, which states:
“Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies
giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the
same overt act, or on confession in open court.” U.S. CONST. art. III, § 3.
86 18 U.S.C. § 2381.
87 See Chandler v. United States, 171 F.2d 921, 941 (1st Cir. 1948) (affirming conviction of defendant convicted of
treason predicated on his radio broadcasting within the German Reich during World War II); United States v.
Greathouse, 26 F. Cas. 18, 24 (C.C.N.D. Cal. 1863) (“[I]f a letter containing important intelligence for the insurgents
be forwarded, the aid and comfort are given, though the letter be intercepted on its way.”).
88 For more background on mens rea requirements in federal criminal law, see CRS Report R46836, Mens Rea: An
Overview of State-of-Mind Requirements for Federal Criminal Offenses, by Michael A. Foster. For scholarly treatment
of the complex intent requirements in applicable statutes, see Papandrea, supra note 43.
89 Mens rea, BLACK’S LAW DICTIONARY (10th ed. 2014) (“The state of mind that the prosecution, to secure a
conviction, must prove that a defendant had when committing a crime.”).
90 See Model Penal Code § 2.02(2) (defining “Kinds of Culpability”).
91 18 U.S.C. §§ 793(a)–(c); 794(a).
92 United States v. Gorin, 312 U.S. 19, 27 (1941).
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information could be used to injure the United States or to advantage a foreign nation.93 The
Supreme Court has described the “willful” standard in some contexts as requiring that the accused
was aware that his or her conduct violated the law.94 Further adding to the complexity of the
Espionage Act, the second prong of the mens rea requirements under Sections 793(d)–(e) does
not apply to the disclosure of national-security-related documents and other physical material—
only national security information.95 Consequently, an additional burden of proof may be imposed
when an individual communicates information to an unauthorized source rather than disclosing
the document or other tangible material containing the information.96
Section 793(f) of Title 18 is unique in that it punishes the loss or removal of national defense
information resulting from “gross negligence.”97 This standard has been described in other
contexts as “the failure to exercise even a slight degree of care.”98 Prosecutions under the gross
negligence provision of 18 U.S.C. § 793(f) appear to be rare,99 but at least two servicemembers
were convicted under this provision, as applied through the UMCJ, for removing classified
materials from a government workplace and failing to report or return the material upon
discovering it had been removed.100

93 At least one court has read these two elements together to require that the prosecution must prove that the defendant
disclosed the information “with a bad faith purpose to either harm the United States or to aid a foreign government.”
United States v. Rosen, 445 F. Supp. 2d 602, 626 (E.D. Va. 2006). Later courts confronting the intent issue have
differentiated this case to conclude that the “reason to believe” standard does not require an intent to do harm. See
United States v. Drake, 818 F. Supp. 2d 909, 916 (D. Md. 2011) (distinguishing intent requirements between
disclosures involving tangible documents and those involving intangible information); United States v. Kiriakou, 898
F. Supp. 2d 921, 924–27 (E.D. Va. 2012) (surveying case law and noting that a Fourth Circuit interlocutory appeal,
United States v. Rosen, 557 F.3d 192, 194 (4th Cir. 2009), cast doubt on the district judge’s interpretation).
94 See Bryan v. United States, 524 U.S. 184, 192 (1998); Ratzlaf v. United States, 510 U.S. 135, 141 (1994). See also
United States v. Morison, 844 F.2d 1057, 1071 (4th Cir. 1998), cert denied, 488 U.S. 908 (1988); United States v.
Truong Dinh Hung, 629 F.2d 908, 919 (4th Cir. 1980), cert. denied, 454 U.S. 1144 (1982).
95 18 U.S.C. § 793(d)–(e) prohibit disclosure of national defense information when the possessor has reason to believe
the information “could be used to the injury of the United States or to the advantage of any foreign nation[,]” but they
do not apply the same “reason to believe requirement” to the disclosure of documents and other physical items. See
N.Y. Times Co. v. United States, 403 U.S. 713, 738 n. 9 (1971) (White, J. concurring); United States. v. Drake, 818 F.
Supp. 2d 909, 916–18 (D. Md. 2011); Kiriakou, 898 F. Supp. 2d at 923. In other provisions of the Espionage Act, the
same standards apply to disclosure of information and physical material. See, e.g. 18 U.S.C. § 793(f).
96 See, e.g., Drake, 818 F. Supp. 2d at 920–21 (distinguishing requirements for conviction under the Espionage Act
when a “whistleblower” contacts the press about information that is believed to be of national concern versus when an
individual retains a classified document relating to the national defense).
97 18 U.S.C. § 793(f) (providing for criminal penalties for “[w]hoever, being entrusted with or having lawful possession
or control of any document, writing, code book ... or information, relating to the national defense, ... through gross
negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his
trust, or to be lost, stolen, abstracted, or destroyed.”).
98 Conway v. O’Brien, 312 U.S. 492, 495 (1941) (quoting Shaw v. Moore, 104 Vt. 529, 531 (1932)).
99 Although there have been at least three charges under 18 U.S.C. § 793(f) for unlawful transmission or retention of
national defense information since January 1, 2000, CRS was able to identify only one charge under the gross
negligence provision of this section. That charge was made against former FBI Agent James Smith, who was suspected
of supplying classified information to a Chinese national over the course of a twenty-year period. See Indictment,
United States v. Smith, No. CR-03-4290M (C.D. Cal. May 7, 2003); Vincent J. Schodolski, Ex-FBI Agent Indicted in
China Spy Case, CHI. TRIBUNE (May 8, 2003), http://articles.chicagotribune.com/2003-05-08/news/
0305080212_1_katrina-leung-los-angeles-fbi-chinese-fugitive. Smith ultimately pled guilty to the lesser charge of
making false statements under 18 U.S.C. § 1001. Eric Lichtblau, F.B.I. Agent Pleads Guilty In Deal in Chinese Spy
Case, N.Y. TIMES (May 13, 2004), https://www.nytimes.com/2004/05/13/us/fbi-agent-pleads-guilty-in-deal-in-chinese-
spy-case.html.
100 See United States v. Gonzalez, 16 M.J. 428, 429 (C.M.A. 1983) (defendant “intermingled two classified messages
with personal mail” which he removed from work before traveling to a friend’s home where he left the materials in a
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Other Mens Rea Requirements
Apart from the Espionage Act, 18 U.S.C. § 1924 punishes the knowing removal of classified
information by a government employee or contractor, with the intent to retain the information in
an unauthorized location. A “knowing” mens rea in some contexts requires the defendant to have
been aware that his or her conduct was wrongful.101 Other prohibitions on the disclosure of
protected information incorporate the knowing standard either in conjunction with other mens rea
requirements102 or standing alone.103
In some cases, the available punishment depends on the defendant’s mental state. For example,
under the Atomic Energy Act of 1954, those who disclose documents or information with “intent”
to advantage a foreign nation or harm the United States face possible life imprisonment and a
$100,000 fine, but those who act with a “reason to believe” information could advantage a
foreign nation face a maximum of ten years imprisonment and a $50,000 fine.104 Separate
provisions apply when government employees or contractors or military officials disclose
restricted information identified in the Atomic Energy Act.105
Although some modern statutes create what are known as strict liability offenses that require no
mens rea at all,106 no current statutes appear to impose strict liability for the unauthorized
disclosure or mishandling of classified information.
The First Amendment Framework
The publication of information pertaining to the national defense or foreign policy may serve the
public interest by providing citizens with information that sheds light on the workings of
government, but it seems widely accepted that the public release of at least some of this
information poses a significant enough threat to national security that the public interest is better
served by keeping it secret. The Constitution protects the public right to access government
information and to express opinions regarding the functioning of the government, among other
things, but it also charges the government with “provid[ing] for the common defense.”107
Policymakers are faced with the task of balancing these interests within the framework created by
the Constitution.

desk drawer); United States v. Roller, 42 M.J. 264, 265 (C.A.A.F. 1995) (upon leaving his position at the Intelligence
Division of the United States Marine Corps Headquarters, defendant placed classified material in a gym bag containing
his personal effects and did not report the misplaced documents upon discovering them). For potential distinguishing
characteristics between prosecutions for gross negligence under the UCMJ versus prosecutions against civilians, see
John Ford, Why Intent, Not Gross Negligence, is the Standard in Clinton Case, WAR ON THE ROCKS (July 14, 2016),
https://warontherocks.com/2016/07/why-intent-not-gross-negligence-is-the-standard-in-clinton-case/.
101 See Elonis v. United States, 135 S. Ct. 2001, 2011 (2015) (quoting Staples v. United States, 511 U.S. 600, 607 (U.S.
1994 (“knowing” standard generally requires “awareness of some wrongdoing”))).
102 See 50 U.S.C. § 3121 (prohibiting the intentional disclosure of information identifying a covert agent while knowing
that the information disclosed identifies the covert agent and the United States is taking affirmative measures to conceal
the agent’s status).
103 See id. § 783 (penalizing government officers or employees who, without proper authority, communicate classified
information to a person who the employee “knows or has reason to believe” is an agent or representative of a foreign
government).
104 42 U.S.C. § 2274.
105 See id. § 2277.
106 Liability, BLACK’S LAW DICTIONARY (10th ed. 2014).
107 U.S. CONST., pmbl.
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The First Amendment to the U.S. Constitution provides that “Congress shall make no law ...
abridging the freedom of speech, or of the press.”108 Where speech is restricted based on its
content, the Supreme Court generally applies “strict scrutiny,” meaning that it will uphold a
content-based restriction only if it is necessary “to promote a compelling interest,” and is “the
least restrictive means to further the articulated interest.”109 The Supreme Court has described
protection of the nation’s security from external threat as a classic example of a compelling
government interest.110 It has long been accepted that the government has a compelling need to
suppress certain types of speech, particularly during time of war or heightened risk of
hostilities.111 Speech likely to incite immediate violence, for example, may be suppressed.112
Speech that would give military advantage to a foreign enemy is also susceptible to government
regulation.113
Where First Amendment rights are implicated, it is the government’s burden to show that its
interest is sufficiently compelling to justify enforcement.114 Whether the government has a
compelling need to punish disclosures of classified information turns on whether the disclosure
has the potential to cause damage to the national defense or foreign relations of the United
States.115 Actual damage need not be proved, but potential damage must be more than merely
speculative and incidental.116 On the other hand, the Supreme Court has stated that “state action to
punish the publication of truthful information seldom can satisfy constitutional standards.”117 The
Court further described the constitutional purpose behind the guarantee of press freedom as the
protection of “the free discussion of governmental affairs.”118

108 Id., amend. I. For an analysis of exceptions to the First Amendment, see CRS In Focus IF11072, The First
Amendment: Categories of Speech, by Victoria L. Killion.
109 Sable Commc’ns of Cal. v. Fed. Commc’ns Comm’n, 492 U.S. 115, 126 (1989).
110 See Haig v. Agee, 453 U.S. 280 (1981) (“It is ‘obvious and unarguable’ that no governmental interest is more
compelling than the security of the Nation.”) (citing Aptheker v. Secretary of State, 378 U.S. 500, 509 (1964); accord
Cole v. Young, 351 U.S. 536, 546 (1956)).
111 See Schenck v. United States, 249 U.S. 47 (1919) (formulating “clear and present danger” test).
112 Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).
113 Near v. Minnesota, 283 U.S. 697, 716 (1931) (“No one would question but that a government might prevent actual
obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of
troops.”).
114 United States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 813 (2000) (“If a statute regulates speech based on its
content, it must be narrowly tailored to promote a compelling Government interest.”) (citing Sable Communications of
Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989)).
115 National security is defined as national defense and foreign relations. See Exec. Order No. 13,526, § 6.1(cc), 3
C.F.R. § 13526 (2010).
116 See, e.g., N.Y. Times Co. v. United States, 403 U.S. 713, 725 (1971) (Brennan, J., concurring) (rejecting as
insufficient government’s assertions that publication of Pentagon Papers “could,” “might,” or “may” prejudice the
national interest); see generally Elrod v. Burns, 427 U.S. 347, 362 (1976) (“The interest advanced must be paramount,
one of vital importance, and the burden is on the government to show the existence of such an interest.”) (citing
Buckley v. Valeo, 424 U.S. 1, 94 (1976); Williams v. Rhodes, 393 U.S. 23, 31-33(1968); NAACP v. Button, 371 U.S.
38, 45 (1963); Bates v. Little Rock, 361 U.S. 516, 524 (1960); NAACP v. Alabama, 357 U.S. 449, 464–466 (1958);
Thomas v. Collins, 323 U.S. 516, 530 (1945)).
117 Bartnicki v. Vopper, 532 U.S. 514, 527 (2001) (citing Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979)).
118 Mills v. Alabama, 384 U.S. 214, 218 (1966). Because of the First Amendment purpose to protect the public’s ability
to discuss governmental affairs, along with court decisions denying that it provides any special rights to journalists,
e.g., Branzburg v. Hayes, 408 U.S. 665 (1972), it is likely an implausible argument to posit that the First Amendment
does not apply to the foreign press. See United States v. 18 Packages of Magazines 238 F. Supp. 846, 847–848 (D.C.
Cal. 1964) (“Even if it be conceded, arguendo, that the ‘foreign press’ is not a direct beneficiary of the Amendment, the
concession gains nought for the Government in this case. The First Amendment does protect the public of this
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Although information properly classified in accordance with statute or executive order, if
disclosed to a person not authorized to receive it, carries by definition the potential of causing at
least identifiable harm to the national security of the United States,119 it does not necessarily
follow that government classification by itself will be dispositive of the issue in the context of a
criminal trial. However, courts have adopted as an element of the espionage statutes a
requirement that the information at issue be “closely held.”120 Government classification will
likely serve as strong evidence to support that contention, even if the information seems relatively
innocuous or does not contain much that is not already publicly known.121 Typically, courts have
been unwilling to review executive branch decisions related to national security, or have relied on
a strong presumption that the material at issue is potentially damaging.122 Still, judges have
recognized that the government must make some showing that the release of specific national
defense information has the potential to harm U.S. interests, lest the Espionage Act become a
means to punish whistleblowers who reveal information that poses more of a danger of
embarrassing public officials than of endangering national security.123
The courts seem satisfied that national security is a vital interest sufficient to justify some
intrusion into activities that would otherwise be protected by the First Amendment—at least with

country.... The First Amendment surely was designed to protect the rights of readers and distributors of publications no
less than those of writers or printers. Indeed, the essence of the First Amendment right to freedom of the press is not so
much the right to print as it is the right to read. The rights of readers are not to be curtailed because of the geographical
origin of printed materials.”). The Supreme Court invalidated, on First Amendment grounds, a statute that required
postal authorities to detain unsealed mail from abroad deemed to contain “communist political propaganda” unless the
recipient affirms a desire to receive it. Lamont v. Postmaster General, 381 U.S. 301 (1965). Likewise, the fact that
organizations like WikiLeaks are not typical newsgathering and publishing companies would likely make little
difference under First Amendment analysis. The Supreme Court has not established clear boundaries between the
protection of speech and that of the press, nor has it sought to develop criteria for identifying what constitutes “the
press” that might qualify its members for privileges not available to anyone else. See generally Cong. Rsch. Serv.,
Overview of Freedom of the Press, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/amdt1-
9-1/ALDE_00000395/ (last visited May 1, 2023).
119 Exec. Order No. 13,526, § 1.2, 3 C.F.R. § 13526 (2010), (“Classified National Security Information”). Section 1.2
defines three levels of classification:
(1) “Top Secret” shall be applied to information, the unauthorized disclosure of which reasonably
could be expected to cause exceptionally grave damage to the national security that the original
classification authority is able to identify or describe.
(2) “Secret” shall be applied to information, the unauthorized disclosure of which reasonably could
be expected to cause serious damage to the national security that the original classification
authority is able to identify or describe.
(3) “Confidential” shall be applied to information, the unauthorized disclosure of which reasonably
could be expected to cause damage to the national security that the original classification authority
is able to identify or describe. Id.
120 United States v. Heine, 151 F.2d 813 (2d Cir. 1945) (information must be “closely held” to be considered “related to
the national defense” within the meaning of the espionage statutes).
121 See, e.g., United States v. Abu-Jihaad, 600 F. Supp. 2d 362, 385–86 (D. Conn. 2009) (holding that although
completely inaccurate information might not be covered, information related to the scheduled movements of naval
vessels was sufficient to bring materials within the ambit of national defense information).
122 See, e.g., Haig v. Agee, 453 U.S. 280, 292 (1981) (“Matters intimately related to foreign policy and national security
are rarely proper subjects for judicial intervention.”).
123 See, e.g., United States v. Morison, 844 F.2d 1057, 1086 (4th Cir. 1988) (Phillips, J., concurring) (“I assume we
reaffirm today, that notwithstanding information may have been classified, the government must still be required to
prove that it was in fact ‘potentially damaging ... or useful,’ i.e., that the fact of classification is merely probative, not
conclusive, on that issue, though it must be conclusive on the question of authority to possess or receive the
information. This must be so to avoid converting the Espionage Act into the simple Government Secrets Act which
Congress has refused to enact.”) (emphasis in original), cert. denied, 488 U.S. 908 (1988).
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respect to federal employees.124 Although courts have not held that government classification of
material is sufficient to show that its release is damaging to national security,125 courts seem to
accept without much discussion the government’s assertion that the material in question is
damaging. It is unlikely that a defendant’s bare assertion that such information poses no danger to
U.S. national security would be persuasive without some convincing evidence to that effect or
proof that the information is not closely guarded by the government.126
Select Prosecutions of Leaks and Disclosures
Although the criminal statutes prohibiting the disclosure of protected information have
historically been used to prosecute individuals who made protected information available to
foreign governments or against the agents of foreign governments themselves, courts have held
that the Espionage Act is not limited to such “classic spying” cases involving foreign
governments.127 As cases described below demonstrate, criminal defendants have been
successfully prosecuted even when claiming to have an altruistic desire to expose potentially
important information regarding government activities to the press, public policy advocacy
organizations, and others.128 While there have been cases in which the government has been
unable to secure convictions or has dropped or significantly reduced criminal charges against
alleged leakers,129 no individual has ever been acquitted based on a finding that the public interest
in the released information was so great that it justified an otherwise unlawful disclosure. The
following section discusses select criminal prosecutions, both successful and unsuccessful, for
leaks and other unauthorized disclosures to the press, policy advocacy groups, or others.130

124 See Snepp v. United States, 444 U.S. 507, 510 (1980) (stating that “this Court’s cases make clear that—even in the
absence of an express agreement—the CIA could have acted to protect substantial government interests by imposing
reasonable restrictions on employee activities that in other contexts might be protected by the First Amendment.”);
Morison, 844 F.2d at 1076 (observing that the espionage statutes “are expressions of an important and vital
governmental interest.”); id. at 1073 (finding that, due to “defendant’s own expertise in the field of governmental
secrecy and intelligence operations, the language of the statutes, ‘relating to the national security’ was not
unconstitutionally vague as applied to this defendant.”); United States v. Marchetti, 466 F.2d 1309, 1313 (4th Cir.
1972) (agreeing that “the First Amendment limits the extent to which the United States, contractually or otherwise, may
impose secrecy requirements upon its employees and enforce them with a system of prior censorship” but that “we are
here concerned with secret information touching upon the national defense and the conduct of foreign affairs”), cert.
denied, 409 U.S. 1063 (1972).
125 See, e.g., Scarbeck v. United States, 317 F.2d 546 (D.C. Cir. 1962) (holding that government did not have to show
documents were properly classified “as affecting the national defense” to convict employee under 50 U.S.C. § 783,
which prohibits government employees from transmitting classified documents to foreign agents or entities.)
126 See United States v. Dedeyan, 584 F.2d 36, 39 (4th Cir. 1978).
127 See, e.g., United States v. Morison, 844 F.2d 1057, 1063–70 (4th Cir. 1988), cert. denied, 488 U.S. 908 (1988);
United States v. Rosen, 445 F. Supp. 2d 602, 627–29 (E.D. Va. 2006).
128 See, e.g., infra §§ “Samuel Loring Morison and Jane’s Defence Weekly; Shamai Leibowitz, Leaked Transcripts of
Calls with the Israeli Embassy; Jeffrey Sterling, CIA Disclosures to New York Times Reporter James Risen; Private
Manning and WikiLeaks; Reality Winner, Leaked Document to the Intercept.”
129 For example, the charges against the individuals allegedly responsible for the Pentagon Papers leak were dropped
following evidence of government misconduct. See infra § “The Criminal Prosecution for the Pentagon Papers Leak.”
The charges against Thomas Drake were reduced after it was discovered that much of the information disclosed had
been previously made public. See infra § “Thomas Drake, National Security Agency Disclosures to the Baltimore Sun.”
130 For an analysis of incidents that include individuals who were not prosecuted, see Yochai Benkler, A Public
Accountability Defense for National Security Leakers and Whistleblowers, 8 HARV. L. & POL’Y Rev. 281, 311–20
(2014). For a list of other prosecutions for unlawful retention or other misuse of classified information, see Jeff Seldin,
FBI, Justice Department Routinely Prosecute Misuse of Classified Documents, VOA NEWS (Aug. 9, 2022),
https://www.voanews.com/a/fbi-justice-department-routinely-prosecute-misuse-of-classified-documents/6694887.html.
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The Criminal Prosecution for the Pentagon Papers Leak
One highly publicized instance of a prosecution for leaked information occurred in 1971 when
two analysts at the Rand Corporation, Daniel Ellsberg and Anthony Russo, were indicted for
disclosing a classified study prepared by the Department of Defense on the role of the United
States in the Vietnam War, which came to be known as the Pentagon Papers.131 Ellsberg claimed
he orchestrated the leak in an effort to influence public opinion and help bring about an end to the
Vietnam War.132 In addition to filing a civil action to block the New York Times and Washington
Post from publishing the Pentagon Papers, discussed below,133 the government brought criminal
charges against Ellsberg and Russo for violations of 18 U.S.C. § 793, conversion of government
property, and conspiracy.134 After more than two months of trial, revelations of government
misconduct—including undisclosed wiretaps, a government-ordered break-in at Ellsberg’s
psychiatrist’s office, and destruction of evidence—led the court to order a mistrial and the
prosecution to drop its charges.135
Samuel Loring Morison and Jane’s Defence Weekly
In 1985, Samuel Loring Morison became the first person to be convicted for selling classified
documents to the media, and the court opinion arising from his prosecution, United States v.
Morison, produced an important delineation of the requirements for conviction under the
Espionage Act.136 Charged with violating Section 793 of the Espionage Act and converting
government property by providing classified satellite photographs of a Soviet naval vessel to the
British defense periodical Jane’s Defence Weekly, Morison argued that he lacked the requisite
intent to commit espionage because he transmitted the photographs to a news organization and
not to an agent of a foreign power.137 The U.S. Court of Appeals for the Fourth Circuit rejected
his appeal, finding the intent to sell photographs that he clearly knew to be classified sufficient to
satisfy the mens rea requirement under 18 U.S.C. Section 793(d), which prohibits disclosure by a
lawful possessor of defense information to one not entitled to receive it.138 Morison’s claim of a
salutary motive—he argued that publication of the photos would show the gravity of the threat
posed by the Soviet Union and spur public demand for an increased defense budget139—was not

131 For background on and access to the Pentagon Papers as published by the National Archives, see Pentagon Papers,
NATIONAL ARCHIVES (Aug. 15, 2016), https://www.archives.gov/research/pentagon-papers.
132 See generally DANIEL ELLSBERG, SECRETS: A MEMOIR OF VIETNAM AND THE PENTAGON PAPERS (2002).
133 See infra “The Civil Litigation in the Pentagon Papers Case.”
134 Ellsberg and Russo were charged with violating 18 U.S.C. §§ 371, 641 & 793(c), (d), (e). See United States v.
Russo, No. 9373-(WMB)-CD (filed Dec. 29, 1971), dismissed (C.D. Cal. May 11, 1973); Stephen I. Vladeck,
Prosecuting Leaks under U.S. Law, in WHISTLEBLOWERS, LEAKS, AND THE MEDIA: THE FIRST AMENDMENT AND
NATIONAL SECURITY 31 (Paul Rosenzweig et al., American Bar Association, 2014).
135 For further background on the history of the case and the court’s decision to declare a mistrial, see Melville B.
Nimmer, National Security Secrets v. Free Speech: The Issues Left Undecided in the Ellsberg Case, 26 STAN L. REV.
311 (1974); Martin Arnold, Pentagon Papers Charges are Dismissed; Judge Byrne Frees Ellsberg and Russo, Assails
‘Improper Government Conduct’, N.Y. TIMES (May 12, 1973),
https://archive.nytimes.com/www.nytimes.com/learning/general/onthisday/big/0511.html.
136 United States v. Morison, 844 F.2d 1057 (4th Cir. 1988).
137 Morison, 844 F.2d at 1061–63.
138 Id. at 1080.
139 Id. at 1062. The government countered that his motive was to receive cash and employment from Jane’s Defence
Weekly. Id. at 1084–85 (Wilkinson, J., concurring). See also P. Weiss, The Quiet Coup: U.S. v. Morison—A Victory for
Secret Government, HARPER’S (Sep. 1989), https://harpers.org/archive/1989/09/the-quiet-coup/.
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found to negate the element of intent.140 The Fourth Circuit also rejected Morison’s argument that
the First Amendment protects unauthorized disclosures to the press.141
The fact that the Morison prosecution involved a leak to the media, with seemingly no obvious
intent to transmit sensitive information to hostile intelligence services, did not persuade the jury
or the courts that he lacked culpability. The Department of Justice (DOJ) did, however, come
under some criticism on the basis that such prosecutions are so rare as to amount to a selective
prosecution in Morrison’s case, raising concerns about the chilling effect such prosecutions could
have on would-be whistleblowers who could provide information embarrassing to the
government but vital to public discourse.142 On leaving office, President Clinton pardoned
Morison.143
Lawrence Franklin and the AIPAC Disclosure
In 2005, Lawrence Franklin, a defense analyst at the Office of the Secretary of the Department of
Defense, was indicted for disclosing classified information regarding American forces in Iraq to
an Israeli diplomat and two employees of the American Israel Public Affairs Committee (AIPAC),
a lobbying group focused on U.S.-Israel relations.144 Franklin claimed he disclosed the
information because he believed the threat to American security posed by Iran required more
attention from officials in the National Security Council,145 but he ultimately pled guilty to one
count under the Espionage Act and one count of conspiracy to communicate classified
information to an agent of a foreign government.146 Franklin’s case garnered significant attention
when the government brought—and later dropped—charges against the AIPAC lobbyists who
were on the receiving end of the leak, discussed below.147
Shamai Leibowitz, Leaked Transcripts of Calls with the Israeli Embassy
The first prosecution for unauthorized disclosure to the media during the Obama Administration
occurred in 2009 against Shamai Leibowitz, a Hebrew translator working on contract for the

140 Morison, 844 F. 2d at 1073–74.
141 See id. at 1069–70 (“[I]t seems beyond controversy that a recreant intelligence department employee who had
abstracted from the government files secret intelligence information and had wilfully transmitted or given it to one ‘not
entitled to receive it’ as did the defendant in this case, is not entitled to invoke the First Amendment as a shield to
immunize his act of thievery. To permit the thief thus to misuse the Amendment would be to prostitute the salutary
purposes of the First Amendment.”).
142 See Jack Nelson, U.S. Government Secrecy and the Current Crackdown on Leaks 8 (The Joan Shorenstein Ctr. on
the Press, Pol. and Pub. Pol’y, Working Paper Series 2003-1, 2002), https://shorensteincenter.org/wp-
content/uploads/2012/03/2003_01_nelson.pdf; Ben A. Franklin, Morison Receives 2-Year Jail Term, N.Y. TIMES (Dec.
5, 1985), https://www.nytimes.com/1985/12/05/us/morison-receives-2-year-jail-term.html (noting criticism of the
prosecution as a threat to freedom of the press).
143 Clinton’s Pardons, January 2001, https://www.justice.gov/archives/opa/president-clintons-pardons-january-2001
(last updated Oct. 5, 2022). Senator Daniel Patrick Moynihan wrote a letter in support of Morison’s pardon and
explaining his view that “An evenhanded prosecution of leakers could imperil an entire administration,” and that “[i]f
ever there were to be widespread action taken, it would significantly hamper the ability of the press to function.” Letter
from Daniel Patrick Moynihan, U.S. Sen., to President Bill Clinton (Sep. 29, 1998), http://www.fas.org/sgp/news/2001/
04/moynihan.html.
144 For further detail on the AIPAC disclosure, see Lee, supra note 16, at 167–75.
145 See id. at 167.
146 United States v. Rosen, 557 F.3d 192, 194 n.1 (4th Cir. 2009).
147 See infra § “Criminal Prosecution of AIPAC Lobbyists in United States v. Rosen.”
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FBI.148 The government accused Leibowitz of disclosing classified information to a blogger in
violation of 18 U.S.C. § 798, but it never publicly identified the exact information disclosed or
the identity of the blogger.149 Media outlets reported that Leibowitz disclosed transcripts of
conversations caught on FBI wiretaps of the Israeli Embassy in Washington, D.C.150 Leibowitz
reportedly claimed that his intention was to expose official misconduct, not damage national
security,151 but he ultimately pled guilty and was sentenced to 20 months in prison.152
Thomas Drake, National Security Agency Disclosures to the Baltimore Sun
In April 2010, following an investigation that began during the George W. Bush Administration, a
grand jury indicted a senior official at the National Security Agency (NSA), Thomas Drake,153 on
ten felony charges for providing classified information regarding perceived mismanagement of
NSA programs to the Baltimore Sun.154 Drake’s original indictment included five counts under the
Espionage Act,155 but the prosecution’s case suffered setbacks after it was revealed that much of
the information at issue was either not classified or had been publicly discussed by other
government officials,156 and the court ruled that the government’s proposed substitutions for
documentary evidence it sought to introduce would not provide an adequate opportunity for the
defendant to present his case.157 Drake eventually pled guilty to a single misdemeanor for
exceeding his authorized use of an NSA computer.158 Prior to issuing its sentence of one year
probation and 240 hours of community service, the court reportedly called the government’s
treatment of Drake in the case “unconscionable,” and it declined to impose a fine.159
Jeffrey Sterling, CIA Disclosures to New York Times Reporter James Risen
In a second investigation that began during the George W. Bush Administration and was carried
into the Obama Administration, former CIA officer Jeffrey Sterling was indicted on December 22,
2010, for disclosing classified information about a covert CIA operation in which flawed nuclear
blueprints were provided to Iran through a Russian scientist.160 Sterling disclosed information

148 Former FBI Contract Linguist Pleads Guilty to Leaking Classified Information to Blogger (Dec. 17, 2009),
https://www.justice.gov/opa/pr/former-fbi-contract-linguist-pleads-guilty-leaking-classified-information-blogger.
149 See Indictment of Shamai Kedem Leibowitz at 1, United States v. Leibowitz, No. AW09CR0632 (D. Md. Dec. 4,
2009), https://perma.cc/X559-4APF?type=pdf; Leonard Downie, Jr. & Sara Rafsky, The Obama Administration and
the Press: Leak Investigations and Surveillance in post-9/11 America, COMM. TO PROTECT JOURNALISTS (Oct. 10,
2013), https://perma.cc/D4YG-X6Q3?type=source.
150 Id.
151 See Steven Aftergood, Jail Sentence Imposed in Leak Case, SECRECY NEWS (May 25, 2010), https://fas.org/blogs/
secrecy/2010/05/jail_leak/.
152 Id.; Vladeck, Prosecuting Leaks, supra note 134, at 31.
153 David Wise, Leaks and the Law: The Story of Thomas Drake, SMITHSONIAN MAG. (Aug. 2011),
http://www.smithsonianmag.com/history/leaks-and-the-law-the-story-of-thomas-drake-14796786/.
154 Indictment of Thomas Drake, United States v. Drake, No. 1:10-cr-00181 (D. Md. Apr. 14, 2010),
https://assets.documentcloud.org/documents/323707/drake-indictment.pdf.
155 Id.
156 See Downie & Rafsky, supra note 149.
157 Motion to Dismiss the Indictment at the time of Sentencing, United States v. Drake, No. 1:10-cr-00181 (D. Md.
June 10, 2011), http://www.fas.org/sgp/jud/drake/061011-dismiss.pdf.
158 See Downie & Rafsky, supra note 149.
159 See Steven Aftergood, Handling of Drake Leak Case was “Unconscionable,” Court Said, SECRECY NEWS (July 29,
2011), http://www.fas.org/blog/secrecy/2011/07/drake_transcript.html.
160 See United States v. Sterling, 724 F.3d 482, 488 (4th Cir. 2013), reh’g en banc denied, 732 F.3d 292, cert denied,
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about the program, which became known as “Operation Merlin,” to New York Times reporter
James Risen, who discussed it in a 2006 book about the CIA.161 While some believe Sterling
acted as a whistleblower about the dangers of Operation Merlin, especially because he raised
concerns about the operation to the Senate Intelligence Committee, a jury found Sterling guilty on
nine felony counts, including violations of the Espionage Act.162 He was sentenced to forty-two
months in prison.163
Stephen Jim-Woo Kim, State Department Disclosure to Fox News
Correspondent James Rosen
A State Department contract analyst, Stephen Jin-Woo Kim, was indicted in August 2010 for
disclosing classified information about North Korea’s plans to escalate its nuclear program to Fox
News correspondent James Rosen.164 Kim faced one count of violating the Espionage Act and one
count of making false statements to the FBI.165 After the court denied his motions to dismiss the
espionage charges based on the Constitution’s Treason Clause as well as the First and Fifth
Amendments,166 Kim pled guilty to a single count of disclosing national defense information to a
person not authorized to receive it in violation of 18 U.S.C. § 793(d).167 He was sentenced to
thirteen months in prison.168
Private Manning and WikiLeaks
While serving as an Army intelligence analyst in Baghdad, Private First Class Chelsea (formerly
Bradley) Manning downloaded more than 250,000 U.S. State Department diplomatic cables,
video footage of an airstrike that resulted in the deaths of civilians, and other classified material
from a government classified system.169 When materials were eventually disseminated and
published through WikiLeaks, military officials charged Manning with numerous violations of the
UCMJ, including aiding the enemy under UCMJ Article 104—a crime that carries a potential for

572 U.S. 1149 (2014); In re Grand Jury Subpoena to Risen at 1–3, No. 1:10CR485, 2010 U.S. Dist. LEXIS 143340
(E.D. Va. Nov. 30, 2010); Indictment of Jeffrey Sterling, United States v. Sterling, 818 F. Supp. 2d 945 (E.D. Va.
2011) (No. 1:10CR485), https://assets.documentcloud.org/documents/323711/sterling-indictment.pdf.
161 See JAMES RISEN, STATE OF WAR: THE SECRET HISTORY OF THE CIA AND THE BUSH ADMINISTRATION 193–218
(2006).
162 See Mark Apuzzo, Ex-C.I.A. Officer Sentenced in Leak Case Tied to Times Reporter, N.Y. TIMES (May 11, 2015),
https://www.nytimes.com/2015/05/12/us/ex-cia-officer-sentenced-in-leak-case-tied-to-times-reporter.html; Steven
Nelson, Jeffrey Sterling Sentenced to 42 Months for Talking to Reporter, U.S. NEWS & WORLD REPORT (May 11,
2015), https://www.usnews.com/news/articles/2015/05/11/jeffrey-sterling-sentenced-to-42-months-for-talking-to-
reporter.
163 See sources cited supra note 162.
164 See United States v. Kim, 808 F. Supp. 2d 44, 47 (D.D.C. 2011); Ann E. Marimow, Ex-State Department Adviser
Stephen J. Kim Sentenced to 13 Months in Leak Case, WASH. POST (Apr. 2, 2014), https://perma.cc/2QBB-36K9?type=
source.
165 Kim, 808 F. Supp. 2d at 47.
166 Id.
167 Josh Gerstein, Contractor Pleads Guilty in Leak Case, POLITICO (Feb. 7, 2014), http://www.politico.com/story/
2014/02/stephen-kim-james-risen-state-department-fox-news-103265; Letter from Ronald C. Machen Jr., U.S. Att’y,
U.S. Dep’t of Justice, to Counsel of Stephen Jim-Woo Kim (Feb. 2, 2014), https://fas.org/sgp/jud/kim/plea.pdf.
168 U.S. Attorney’s Office, District of Columbia, Former Federal Contract Employee Sentenced to 13 Months in Prison
for Disclosing National Defense Information (Apr. 2, 2014), https://www.justice.gov/usao-dc/pr/former-federal-
contract-employee-sentenced-13-months-prison-disclosing-national-defense; Marimow, supra note 164.
169 See Tim Bakken, The Prosecution of Newspapers, Reporters, and Sources for Disclosing Classified Information:
The Government’s Softening of the First Amendment, 45 U. TOL. L. REV. 1, 18 (2013).
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capital punishment or life imprisonment170—and violating the Espionage Act as applied through
Article 134 of the UCMJ.171
Manning pled guilty to ten charges, including some Espionage Act counts, but prosecutors
pursued the remaining charges without seeking the death penalty.172 In 2013, Manning was
convicted by court-martial of all charges except aiding the enemy, and was sentenced to thirty-
five years of imprisonment, reduction in rank, forfeiture of pay, and a dishonorable discharge.173
On January 17, 2017, President Obama commuted Manning’s sentence, which expired in May
2017.174 The United States has also brought charges against Julian Assange for his role in
connection with Private Manning’s disclosures, discussed below.175
John Kirakou, Violation of the Intelligence Identities Protection Act
In April 2012, a grand jury indicted former CIA officer John Kirakou for charges arising from the
alleged disclosure of classified information related to the CIA’s detention and interrogation
program to journalists.176 Kirakou was indicted on five felony counts: three violations of the
Espionage Act, one count of making false statements to federal officials, and one count of
violating the Intelligence Identities Protection Act177 for providing the name of a covert CIA
operative to a reporter.178 While Kirkaou argued that he had been singled out for prosecution
because of his earlier public criticism of the CIA,179 he pled guilty to violating the Intelligence
Identities Protection Act.180 The remaining charges were dropped as part of his plea agreement,

170 10 U.S.C. § 904.
171 Id. § 934. See also Ed Pilkington, Bradley Manning May Face Death Penalty, GUARDIAN (Mar. 2, 2011),
http://www.guardian.co.uk/world/2011/mar/03/bradley-manning-may-face-death-penalty (reporting that 22 new
charges, including aiding the enemy, were added to the original 12 specifications).
172 See Bakken, supra note 169; Katherine Feuer, Article: Protecting Government Secrets: A Comparison of the
Espionage Act and the Official Secrets Act, 38 B.C. INT’L & COMP. L. REV. 91, 104 (2015); Ed Pilkington, Bradley
Manning Pleads Guilty to 10 Charges But Denies ‘Aiding the Enemy,’ GUARDIAN (Feb. 28, 2013),
https://www.theguardian.com/world/2013/feb/28/bradley-manning-pleads-aiding-enemy-trial.
173 See Andrew Aylward, Manning Acquitted of Aiding the Enemy, WALL. ST. J. (July 30, 2013),
https://www.wsj.com/articles/SB10001424127887323854904578637681374754140; Sarah Childress, Bradley
Manning Sentenced to 35 Years for Wikileaks, PBS FRONTLINE (Aug. 21, 2013),
https://www.pbs.org/wgbh/frontline/article/bradley-manning-sentenced-to-35-years-for-wikileaks/.
174 Press Release, The White House, Office of the Press Secretary, President Obama Grants Commutations and
Pardons, OBAMA WHITE HOUSE ARCHIVES (Jan. 17, 2017), https://obamawhitehouse.archives.gov/the-press-office/
2017/01/17/president-obama-grants-commutations-and-pardons.
175 See infra “The Julian Assange Charges.”
176 See Indictment of John C. Kiriakou, United States v. Kiriakou, No. 1:12cr127 (LMB) (E.D. Va. Apr. 5, 2012),
https://sgp.fas.org/jud/kiriakou/indict.pdf. See also Vladeck, supra note 134, at 33.
177 50 U.S.C. § 3121.
178 Press Release, Dep’t of Justice, Office of Public Affairs, Former CIA Officer John Kiriakou Indicted for Allegedly
Disclosing Classified Information, Including Covert Officer’s Identity, to Journalists and Lying to CIA’s Publications
Board (Apr. 5, 2012), https://www.justice.gov/opa/pr/former-cia-officer-john-kiriakou-indicted-allegedly-disclosing-
classified-information.
179 See Associated Press, CIA ‘Whistleblower’ John Kiriakous Jailed for Two Years for Identity Leak, GUARDIAN (Oct.
23, 2012), https://www.theguardian.com/world/2012/oct/23/cia-whistleblower-john-kiriakou-leak.
180 Press Release, Dep’t of Justice, U.S. Attorney’s Office, Former CIA Officer Sentenced to 30 Months for Revealing
Identity of 20-Plus-Year Covert CIA Officer (Jan. 25, 2013), https://www.justice.gov/usao-edva/pr/former-cia-officer-
sentenced-30-months-revealing-identity-20-plus-year-covert-cia.
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and he was sentenced to thirty months in prison.181 This case is reported to have been the first
conviction under Intelligence Identities Protection Act in twenty-seven years.182
James Hitselberger, Navy Linguist Disclosure to the Hoover Institution
In May 2012, a grand jury indicted a former Navy contract linguist in Bahrain, James
Hitselberger, on three counts of violating the Espionage Act and three counts of unlawful removal
of a public record in violation of 18 U.S.C. § 2071(a)183 for providing certain classified
information to the Hoover Institution,184 a public policy think tank at Stanford University.
Hitselberger, who claimed that his case was “overcharged,”185 entered into a plea agreement in
which all Espionage Act charges were dropped. He pled guilty to a single misdemeanor count of
unlawful removal of classified material under 18 U.S.C. § 1924186 for attempting to take certain
classified materials outside of a secure work area.187 He was sentenced to time served.188
Donald Sachtleben, Disclosure of Foiled Bomb Plot to the Associated Press
Donald Sachtleben, a former Special Agent Bomb Technician and then-contractor for the FBI,
was charged with multiple counts of violating the Espionage Act in September 2013 for leaking
classified information relating to a foiled suicide bombing attack on a U.S.-bound airliner by
operatives of Al Qaeda in the Arabian Peninsula.189 Although the government filings did not
publicly identify the recipient of the information, it was widely reported that Sachtleben leaked
the information to the Associated Press (AP).190 The case garnered significant attention after it
was made known that the government subpoenaed AP journalists’ phone records for evidence
against Sachtleben without advance notice to the targets of the subpoenas.191 Sachtleben

181 Dep’t of Justice, U.S. Attorney’s Office, supra note 180; Charlie Savage, Former C.I.A. Operative Pleads Guilty in
Leak of Colleague’s Name, N.Y. TIMES (Oct. 23, 2012), https://www.nytimes.com/2012/10/24/us/former-cia-officer-
pleads-guilty-in-leak-case.html.
182 Justin Jouvenal, Former CIA Officer John Kiriakou is Sentenced to 30 Months in Prison for Leaks, WASH. POST.
(Jan. 25, 2013), https://www.washingtonpost.com/local/former-cia-officer-john-kiriakou-sentenced-to-30-months-in-
prison-for-leaks/2013/01/25/49ea0cc0-6704-11e2-9e1b-07db1d2ccd5b_story.html?utm_term=.63797e7c6995.
183 18 U.S.C. § 2071(a).
184 See Superseding Indictment, United States v. Hitselberger, No. 12-231 (D.D.C., filed Feb. 28, 2013),
https://sgp.fas.org/jud/hitsel/indict-sup.pdf; Vladeck, supra note 134, at 29 n.1. See also Josh Gerstein, Linguist
Charged with Pilfering Records Seeks Release, POLITICO (Dec. 4, 2012), http://www.politico.com/blogs/under-the-
radar/2012/12/linguist-charged-with-pilfering-records-seeks-release-151097.
185 Steven Aftergood, Espionage Act Case was “Overcharged” Defense Says, SECRECY NEWS (June 30, 2014),
https://fas.org/blogs/secrecy/2014/06/esp-act-overcharged/.
186 For a summary of this statute, see infra § “Other Relevant Statutes.”
187 See Judgment, United States v. Hitselberger, No. 12-231 (D.D.C. filed July 18, 2014),
https://sgp.fas.org/jud/hitsel/judgment.pdf; Superseding Information, United States v. Hitselberger, No. 12-231 (D.D.C.
filed Apr. 25, 2014), https://sgp.fas.org/jud/hitsel/info-sup.pdf; Josh Gerstein, Ex-Navy Linguist Pleads Guilty in Secret
documents Case, POLITICO (Apr. 25, 2014), http://www.politico.com/blogs/under-the-radar/2014/04/ex-navy-lingust-
pleads-guilty-in-secret-documents-case-187436.
188 See Judgment, supra note 187.
189 Statement of Offense, United States v. Sachtleben, No. 1:13-cr-0200 (S.D. In. filed Sep. 23, 2014),
https://www.justice.gov/iso/opa/resources/7642013923154527618802.pdf.
190 See, e.g., Josh Gerstein, Ex-FBI Agent Admits to AP Leak, POLITICO (Sep. 23, 2013), http://www.politico.com/story/
2013/09/ex-fbi-agent-pleads-guilty-associated-press-leak-case-097226; Tim Evans, Ex-FBI Bomb Tech’s High-Profile
Career Ends in Scandal, USA TODAY (Sep. 25, 2013), http://www.usatoday.com/story/news/nation/2013/09/25/fbi-
bomb-tech-career-ends-in-scandal/2868499/.
191 See Charlie Savage and Leslie Kaufman, Phone Records of Journalists Seized by U.S., N.Y. TIMES (May 1, 2013,),
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ultimately pled guilty to two counts of violating the Espionage Act and was sentenced to forty-
three months’ imprisonment.192
Edward Snowden, National Security Agency Data-Collection Programs
In 2013, Edward Snowden, a former contractor working as a computer systems administrator at
an NSA facility in Hawaii, was charged in connection with leaking top-secret documents related
to certain NSA data-collection programs to the Guardian (UK) and the Washington Post.193
Snowden permitted the newspapers to publish his name, but fled to Hong Kong before he could
be taken into custody. A still-pending criminal complaint charges Snowden with violating 18
U.S.C. §§ 793(d) and 798(a)(3) and theft of government property under 18 U.S.C. § 641.194
Russia granted Snowden citizenship in December 2022, making it impossible under the Russian
Federation’s constitution to extradite him to the United States.195
General David Petraeus, Unauthorized Disclosure to Biographer
Former Army General and Director of the CIA David Petraeus was charged with misdemeanor
removal of documents and materials containing classified information with intent to retain them
at an unauthorized location in violation of 18 U.S.C. § 1924 in March 2015.196 Petraeus was
accused of disclosing classified information to an Army Reserve officer who was writing his
biography and with whom Petraeus admitted to having a romantic relationship.197 Although his
case does not fit the common mold for a leak prosecution because Petraeus did not disclose
information to the press or another public policy organization as part of an alleged effort to
influence public opinion, his case still received significant public attention given his senior role in
the government.198 Petraeus pled guilty to the misdemeanor charge, and prosecutors

https://www.nytimes.com/2013/05/14/us/phone-records-of-journalists-of-the-associated-press-seized-by-us.html. Sari
Horwitz & Carol D. Leonnig, Holder is Back in the Crossfire After Justice Dept. Obtains AP Phone Records, WASH.
POST (May 14, 2013), https://www.washingtonpost.com/world/national-security/attorney-general-eric-holder-back-in-
crossfire-after-justice-dept-obtains-ap-phone-records/2013/05/14/a045a01e-bcab-11e2-89c9-3be8095fe767_story.html.
192 See Press Release, Dep’t of Justice, U.S. Attorney’s Office, Former Federal Contractor Sentenced for Disclosing
National Defense Information and Distributing Child Pornography (Nov. 14, 2013), https://www.justice.gov/usao-sdin/
pr/former-federal-contractor-sentenced-disclosing-national-defense-information-and. Sachtleben simultaneously
entered into a plea agreement and pled guilty to child pornography-related offenses uncovered in an unrelated
investigation. Id.
193 See Devlin Barrett, Snowden on the Run, WALL ST. J. (June 24, 2013),
https://www.wsj.com/articles/SB10001424127887323683504578562852310273818; Shaun Waterman, NSA Leaker Ed
Snowden Used Banned Thumb-drive, Exceeded Access, WASH. TIMES (June 14, 2013),
https://www.washingtontimes.com/news/2013/jun/14/nsa-leaker-ed-snowden-used-banned-thumb-drive-exce/.
194 See Press Release, Dep’t of Justice, Office of Public Affairs, Justice Department Statement on the Request to Hong
Kong for Edward Snowden’s Provisional Arrest (June 26, 2013), https://www.justice.gov/opa/pr/justice-department-
statement-request-hong-kong-edward-snowden-s-provisional-arrest.
195 Andrew Roth, Edward Snowden Gets Russian Passport After Swearing Oath of Allegiance, GUARDIAN (Dec. 2,
2022), https://www.theguardian.com/us-news/2022/dec/02/edward-snowden-gets-russian-passport-after-swearing-oath-
of-allegiance.
196 Bill of Information, United States v. Petraeus No. 3:15 CR 47, (W.D.N.C. Mar. 3, 2015),
http://www.ncwd.uscourts.gov/sites/default/files/general/Petraeus.pdf.
197 See Jonathan Allen, Josh Gerstein, & Jennifer Epstein, Citing Affair, Petraeus Resigns at CIA, POLITICO (Nov. 11,
2012), https://www.politico.com/story/2012/11/gen-david-petraeus-resigns-08364; Michael S. Schmidt and Matt
Apuzzo, F.B.I. and Justice Dept. Said to Seek Charges for Petraeus, N.Y. TIMES (Jan. 9, 2015),
https://www.nytimes.com/2015/01/10/us/politics/prosecutors-said-to-recommend-charges-against-former-gen-david-
petraeus.html.
198 See, e.g., sources cited supra note 197; Petraeus Sentenced to 2 Years Probation for Military Leak, FOXNEWS (Dec.
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recommended a $40,000 fine as part of a plea agreement,199 but the court imposed the maximum
$100,000 fine based on what it deemed to be the serious nature of the crime.200
Reality Winner, Leaked Document to the Intercept
Reality Winner, an NSA contractor, was charged under the Espionage Act for providing the news
website the Intercept a top-secret report revealing Russian efforts to hack voting machines during
the 2016 election.201 She pled guilty in 2018 to one count of unlawful retention and transmission
of national defense information in violation of 18 U.S.C. § 793(e) and was sentenced to sixty-
three months in prison and three years of supervised release.202 She was released to a halfway
house in June 2021 for good behavior203 and subsequently released to her parents’ home.204
Joshua Schulte, Disclosure of CIA Hacking Tools to WikiLeaks
Joshua Adam Schulte, a former CIA software engineer, was prosecuted in connection with the
“Vault 7” leak of details regarding CIA tools and techniques for penetrating foreign computer and
communications networks.205 He was charged with unauthorized disclosure of national defense
information, theft of government property, unauthorized access of a government computer, and
transmission of harmful computer programs and code.206 WikiLeaks began publishing the files in
2017, claiming that the entire archive contained several hundred million lines of computer

20, 2015), http://www.foxnews.com/politics/2015/04/23/petraeus-sentenced-to-2-years-probation-for-military-
leak.html; Adam Goldman, Petraeus Pleads Guilty to Mishandling Classified Material, Will Face Probation, WASH.
POST. (Apr. 22, 2015), https://www.washingtonpost.com/world/national-security/petraeus-set-to-plead-guilty-to-
mishandling-classified-materials/2015/04/22/3e6dbf20-e8f5-11e4-aae1-d642717d8afa_story.html.
199 See Plea Agreement at 3, United States v. Petraeus No. 3:15 CR 47, (W.D.N.C. Mar. 3, 2015),
http://www.ncwd.uscourts.gov/sites/default/files/general/Petraeus.pdf.
200 See Ken Otterbourg & Andrew Grossman, Gen. David Petraeus Avoids Jail Time, to Pay $100,000 Fine: Former
CIA Director Pleased Guilty in Agreement with Justice Department, WALL ST. J. (Apr. 23, 2015),
https://www.wsj.com/articles/david-petraeus-sentenced-to-two-years-probation-1429816999.
201 Press Release, Dep’t of Justice, Office of Public Affairs, Federal Government Contractor in Georgia Charged With
Removing and Mailing Classified Materials to a News Outlet (Jun. 5, 2017), https://www.justice.gov/opa/pr/federal-
government-contractor-georgia-charged-removing-and-mailing-classified-materials-news; Criminal Complaint, United
States v. Winner, No. 1:17-mj-00024 (S.D. Ga. June 5, 2017), https://www.justice.gov/opa/press-
release/file/971336/download; Affidavit in Support of Application for Arrest Warrant, United States v. Winner, No.
1:17-mj-00024 (S.D. Ga. June 5, 2017), https://www.justice.gov/opa/press-release/file/971331/download; Amanda
Holpuch, Reality Winner: NSA Contractor Jailed for Five Years over Classified Report Leak, GUARDIAN (Aug. 23,
2018), https://www.theguardian.com/us-news/2018/aug/23/reality-winner-sentence-classified-report-leak.
202 Press Release, Dep’t of Justice, Office of Public Affairs, Federal Government Contractor Sentenced for Removing
and Transmitting Classified Materials to a News Outlet (Aug. 23, 2018), https://www.justice.gov/opa/pr/federal-
government-contractor-sentenced-removing-and-transmitting-classified-materials-news.
203 Julian E. Barnes, Reality Winner, Who Leaked Government Secrets, is Released from Prison, N.Y. TIMES (Jun. 14,
2021), https://www.nytimes.com/2021/06/14/us/politics/reality-winner-is-released.html.
204 See Reality Winner Says She Leaked File on Russia Election Hacking because ‘Public was Being Lied To’,
GUARDIAN (July. 25, 2022), https://www.theguardian.com/us-news/2022/jul/25/reality-winner-leaked-file-on-russia-
election-hacking-because-public-was-being-lied-to.
205 See Superseding Indictment, United States. v. Schulte, Case No. S1 17 Cr. 548, (S.D. N.Y. 2018),
https://www.justice.gov/usao-sdny/press-release/file/1072871/download [Schulte Indictment].
206 See Schulte Indictment, supra note 205. Press Release, U.S. Attorney’s Office, Southern District of New York,
Joshua Adam Schulte Charged with the Unauthorized Disclosure of Classified Information and Other Offenses
Relating to the Theft of Classified Material from the Central Intelligence Agency (Jun. 18. 2018),
https://www.justice.gov/usao-sdny/pr/joshua-adam-schulte-charged-unauthorized-disclosure-classified-information-
and-other.
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code.207 Schulte was convicted in 2022 on nine counts related to the theft and transmission of the
material and lying to the FBI.208 Schulte has not yet been sentenced but could face eighty years in
prison.209
Jack Teixeira, Charged with Posting Classified Documents in Online Chat
Room
Massachusetts Air National Guardsman Jack Teixeira was charged with violating 18 U.S.C. §§
793(b) and (d) and 1924 for posting transcriptions and images of dozens of classified documents
to an online social media site beginning in December 2022.210 The twenty-one-year-old airman
had access to the documents due to his role as an information technology specialist in the 102nd
Intelligence Wing, headquartered on Otis Air National Guard Base in Eastern Massachusetts.211
The disclosed materials described intelligence concerning the war in Ukraine and other matters
involving U.S. adversaries as well as allies.212 The government has asked a magistrate judge to
deny his request to be released on bail.213
Legal Proceedings Involving the Press or Other
Recipients of Unlawful Disclosures
While courts have held that the Espionage Act and other relevant statutes allow for convictions
for leaks to the press,214 the government has never prosecuted a traditional news organization for
its receipt of classified or other protected information.215 The plain terms of the Espionage Act,
however, do not focus solely on the initial disclosure of national defense information.216 While

207 Shane Harris, Wikileaks Dumps Trove of Purported CIA Hacking Tools, WALL ST. J. (Mar. 7, 2017),
https://www.wsj.com/articles/wikileaks-posts-thousands-of-purported-cia-cyberhacking-documents-1488905823.
208 Danielle Wallace, Ex-CIA Engineer Convicted of Biggest Theft of Secret Information in Agency’s History, FOX
NEWS (July 14, 2022), https://www.foxnews.com/us/ex-cia-engineer-convicted-biggest-theft-secret-information-
agencys-history. The conviction was for four counts of espionage in violation of 18 U.S.C. §§ 793(b) and (e), four
counts of computer hacking in violation of 18 U.S.C. § 1030(a), and one count of obstructing justice in violation of 18
U.S.C. § 1503. The Government’s Memorandum of Law in Opposition to the Defendant’s Pro Se Motions for a
Judgment of Acquittal or New Trial at 6, United States v. Schulte, No. 1:17-cr-00548 (S.D.N.Y. filed Mar. 16, 2023),
https://ia601400.us.archive.org/13/items/gov.uscourts.nysd.480183/gov.uscourts.nysd.480183.1021.0.pdf.
209 See U.S. Attorney’s Office, Southern District of New York, supra note 206.
210 Criminal Complaint and Affidavit in Support of an Application for a Criminal Complaint and Arrest Warrant,
United States v. Teixeira, No. 23-4293-DHH (Apr. 14, 2023, D. Mass.), available at
https://www.documentcloud.org/documents/23777290-case-1-23-mj-04293-dhh.
211 John Ismay & Jenna Russell, Massachusetts Air National Guard’s Intelligence Mission in the Spotlight, N.Y. TIMES
(Apr. 13, 2023), https://www.nytimes.com/2023/04/13/us/leaked-documents-massachusetts-air-national-guard.html.
212 Daniel Victor, Leaked Documents Revealed Secret U.S. Intelligence, What Did They Say?, N.Y. TIMES (Apr. 13,
2023), https://www.nytimes.com/live/2023/04/13/us/documents-leak-pentagon?smid=url-share#leaked-documents-
revealed-secret-us-intelligence-what-did-they-say.
213 Shelley Murphy, Air National Guardsman Accused of Leaking Classified Military Documents Due in Court for
Second Hearing on Possible Bail, BOSTON GLOBE (May 8, 2023), Air National Guardsman accused of leaking classified
military documents due in court for second hearing on possible bail (msn.com).
214 See infra § “Select Prosecutions of Leaks and Disclosures.”
215 Papandrea, supra note 43, at 1389. See also House Judiciary WikiLeaks Hearing, supra note 2, at 39–40, 43
(statement of Kenneth L. Wainstein, former Assistant Attorney General, Partner, O’Melveny & Myers, LLP).
216 See, e.g. 18 U.S.C. § 793(a) (criminal prohibition on one who, with the required mens rea, “obtains” national
defense information); id. § 793(c) (criminal prohibition on an individual who “receives or obtains or agrees or attempts
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there is some authority for interpreting portions of the Espionage Act as to exclude “publication”
of material from the criminal provisions,217 some have argued that the act could be read to apply
to anyone who, while meeting applicable mens rea requirements, disseminates, distributes,
receives, or retains national defense information or material, even if such actions are taken as a
member of the press.218 In two prosecutions, one of which was dropped, the United States has
pursued criminal charges against individuals other than the initial leaker for the individuals’ roles
in soliciting and facilitating the leaks.219
The role of the press in leak prosecutions became the subject of frequent discussion among legal
and media commentators following a series of cases in which the government sought to gather
evidence from the media about their sources through secret subpoenas that were not made known
to their targets.220 The following section discusses these legal proceedings in which members of
the press or other recipients of leaked information were implicated in legal proceedings either as
the subject of a civil or criminal suit itself or as the target of the government’s effort to gather and
present evidence.
The Civil Litigation in the Pentagon Papers Case
The primary legal precedent governing the potential prosecution of the press for publishing
leaked information is the Supreme Court’s Pentagon Papers decision.221 In addition to the
criminal prosecution of Daniel Ellsberg and Anthony Russo for disclosure of the Pentagon
Papers, the Nixon Administration filed civil suits against the New York Times and Washington
Post, seeking to prevent them from publishing the leaked documents.222 The consolidated case
quickly reached the Supreme Court,223 which, in a terse per curiam opinion accompanied by a
separate concurring or dissenting opinion by every member of the Court, rejected the
government’s request for a temporary restraining order and preliminary injunction barring
publication.224 Although the fact that the case concerned an injunction against publication in civil
suits rather than a prosecution for publication is a significant distinguishing factor, the majority of
Supreme Court Justices recognized a high level of First Amendment protection afforded to the

to receive or obtain” certain national defense material); id. § 793(f) (criminal prohibition on the “fail[ure] to make
prompt report” of the loss, theft, abstraction, or destruction” of national defense information”).
217 See N.Y. Times Co. v. United States, 403 U.S. 713, 721–22 (1971) (Douglas, J., concurring) (rejecting government
argument that term “communicate” should be read to include “publish,” based on conspicuous absence of the term
“publish” in that section of the Espionage Act and legislative history demonstrating Congress had rejected an effort to
reach publication).
218 See, e.g., House Judiciary WikiLeaks Hearing, supra note 2, at 67 (statement of Stephen Vladeck) (“[T]he text of
the [Espionage] Act makes no distinction between the leaker, the recipient of the leak, or the 100th person to
redistribute, retransmit, or even retain national defense information that ... is already in the public domain.”); id.
Vladeck, supra note 12, at 231–32.
219 See infra §§ “Criminal Prosecution of AIPAC Lobbyists in United States v. Rosen; “The Julian Assange Charges.”
220 See, e.g., Vladeck, supra note 12, at 231–32; Lee, supra note 16, at 130–36; Dana Milbank, In AP, Rosen
Investigations, Government Makes Criminals of Reporters, WASH. POST (May 21, 2013),
http://articles.washingtonpost.com/2013-05-21/opinions/39419370_1_obama-administration-watergate-benghazi.
221 N.Y. Times Co. v. United States, 403 U.S. 713 (1971) (per curiam).
222 See id.
223 DOJ filed its first complaint against the New York Times on June 14, 1971, JAKE KOBRICK, THE PENTAGON PAPERS
IN THE FEDERAL COURTS 2 (2019), and the Supreme Court issued its written opinion just over two weeks later on June
30, 1971. See N.Y. Times, 403 U.S. at 713.
224 See N.Y. Times, 403 U.S. at 714.
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press in the Pentagon Papers case.225 The Court’s decision to deny the injunction may inform
decisions involving criminal prosecutions of the press or other media organizations.226
The Supreme Court’s Pentagon Papers decision does not, however, foreclose the possibility that
a newspaper or other media outlet could be convicted of a criminal violation for publishing
protected information. Several Justices suggested in separate opinions that the newspapers—
along with the former government employee who leaked the documents to the press—could be
criminally prosecuted under the Espionage Act even if an injunction was not available.227 Still, in
a later case, the Court stressed that any prosecution of a publisher for what has already been
printed would have to overcome only slightly less insurmountable hurdles.228
The publication of truthful information that is lawfully acquired enjoys considerable First
Amendment protection.229 The Court has not resolved the question “whether, in cases where
information has been acquired unlawfully by a newspaper or by a source, government may ever
punish not only the unlawful acquisition, but the ensuing publication as well.”230 (The Pentagon
Papers Court did not consider whether the newspapers’ receipt of the classified document was in
itself unlawful, although it appeared to accept that the documents had been unlawfully taken from
the government by their source.)
In other First Amendment cases, the Supreme Court has established that “routine newsgathering”
is presumptively lawful acquisition, the fruits of which may be published without fear of
government retribution.231 However, what constitutes “routine newsgathering” has not been
further elucidated. In a 2001 case, Bartnicki v. Vopper, the Court cited the Pentagon Papers case
holding that media organizations cannot be punished (albeit in the context of civil damages) for
divulging information on the basis that it had been obtained unlawfully by a third party.232 The
holding suggests that recipients of unlawfully disclosed information cannot be considered to have

225 Se id. at 717 (Black, J. with Douglas, J., concurring) (“Both the history and language of the First Amendment
support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions,
or prior restraints.”); id. at 720 (Douglas, J. with Black, J., concurring) (interpreting the First Amendment to leave “no
room for governmental restraint on the press”); id. at 725 (Brennan, J., concurring) (“[T]he First Amendment stands as
an absolute bar to the imposition of judicial restraints in circumstances of the kind presented by these cases.”); id. at
728 ((Stewart, J. with White, J., concurring) (“[W]ithout an informed and free press there cannot be an enlightened
people.”); id. at 730–31, (White, J. with Stewart, J., concurring) (emphasizing the “concededly extraordinary protection
against prior restraints enjoyed by the press under our constitutional system”).
226 See Papandrea, supra note 43, at 1420–23 (discussing the impact and potential applicability of the Pentagon Papers
case in criminal prosecutions for disclosure of protected information); House Judiciary WikiLeaks Hearing, supra note
215, at 20 (statement of Geffrey R. Stone) (“The standard applied in the Pentagon Papers case is essentially the same
standard the Court would apply in a criminal prosecution of an organization or individual for publicly disseminating
information about the conduct of government.”) (emphasis in original).
227 See N.Y. Times Co., 403 U.S. at 734–40 (White, J. with Stewart, J. concurring); id. at 745–47 (Marshall, J.,
concurring); id. at 752 (Burger, C.J., dissenting); id. at 752-59 (Harlan, J., joined by Burger, C.J. and Blackmun, J.,
dissenting); See also David Topol, Note, United States v. Morison: A Threat to the First Amendment Right to Publish
National Security Information, 43 S.C. L. REV. 581, 586 (noting that three concurring Justices suggested that the
government could convict the newspapers under the Espionage Act even though it could not enjoin them from printing
the documents, while the three dissenting Justices thought the injunction should issue).
228 See Smith v. Daily Mail Publishing Co., 443 U.S. 97, 102–03 (1979) (“Whether we view the statute as a prior
restraint or as a penal sanction for publishing lawfully obtained, truthful information is not dispositive because even the
latter action requires the highest form of state interest to sustain its validity.”) The case involved the prosecution of a
newspaper for publishing the name of a juvenile defendant without court permission, in violation of state law.
229 See, e.g., Landmark Commc’n, Inc. v. Virginia, 435 U.S. 829, 837 (1978).
230 Fla. Star v. B.J.F. 491 U.S. 524, 535 n.8 (1989) (emphasis in original). The Court also questioned whether the
receipt of information can ever constitutionally be proscribed. Id. at 536.
231 Daily Mail, 443 U.S at 103. Here, routine newsgathering consisted of perusing publicly available court records.
232 Bartnicki v. Vopper, 532 U.S. 514 (2001).
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obtained such material unlawfully based solely on their knowledge (or “reason to know”) that the
discloser acted unlawfully. Under such circumstances, disclosure of the information by the
innocent recipient would be covered by the First Amendment, although a wrongful disclosure by
a person in violation of an obligation of trust would receive no First Amendment protection,
regardless of whether the information was obtained lawfully.233
Criminal Prosecution of AIPAC Lobbyists in United States v. Rosen
The first known instance of criminal prosecution against the recipient of classified information in
the context of a leak occurred in the case of Lawrence Franklin’s disclosure of classified material
to two AIPAC lobbyists, discussed above.234 The lobbyists, Steven J. Rosen and Keith Weissman,
were indicted in 2005 for conspiracy to disclose national security secrets to unauthorized
individuals, including Israeli officials, other AIPAC personnel, and a reporter for the Washington
Post.235 Their part in the conspiracy included receiving information from government employees
with knowledge that the employees were not authorized to disclose it and disclosing that
information to others.236 Some observers argued that the prosecution effectively criminalized the
exchange of information,237 based in part on the government’s theory that the defendants were
guilty of solicitation of classified information because they inquired into matters they knew their
government informant was not permitted to discuss, which some national security journalists
consider to be an ordinary part of their job.238
The government eventually dropped the charges, reportedly due to a judge’s ruling regarding the
government’s burden of proving the requisite intent and concerns that classified information
would have to be disclosed at trial.239 With respect to the intent requirement under the Espionage

233 See Boehner v. McDermott, 484 F.3d 573 (D.C. Cir. 2007) (en banc) (Congressman, bound by Ethics Committee
rules not to disclose certain information, had no First Amendment right to disclose to press contents of tape recording
illegally made by third party).
234 See infra § “Lawrence Franklin and the AIPAC Disclosure.”
235 See United States v. Rosen, 445 F. Supp. 2d 602 (E.D. Va. 2006) (Rosen and Weissman were charged with
conspiracy under 18 U.S.C. § 793(g) to violate 18 U.S.C. § 793(d) & (e); Rosen was additionally charged with another
violation of 18 U.S.C. § 793(d)). See also Jerry Markon, U.S. Drops Case Against Ex-Lobbyists, N.Y. TIMES (May 2,
2009), https://www.nytimes.com/2009/05/02/us/politics/02aipac.html (stating the case is the first prosecution under the
Espionage Act against civilians not employed by the government). During World War II, government officials
considered prosecuting the Chicago Tribune for publishing a story that suggested that the United States won the Battle
of Midway because it was able to read Japanese codes. See Mary-Rose Papandrea, Lapdogs, Watchdogs, and
Scapegoats: The Press and National Security Information, 83 IND. L.J. 233, 258 (2008). When Japan did not change its
coded communications, the Department of War asked DOJ to drop the matter so as not to draw attention to the United
States’ intelligence capabilities. See id.; Geoffrey R. Stone, Roy R. Ray Lecture: Freedom of the Press in Time of War,
59 SMU L. REV. 1663, 1668 (2006); House Judiciary WikiLeaks Hearing, supra note 215, at 61 (statement of Gabriel
Schoenfeld).
236 Rosen, 445 F. Supp. 2d at 608; see William E. Lee, Deep Background: Journalists, Sources, and the Perils of
Leaking, 57 AM. U. L. REV. 1453, 1519 (2007) (opining that “the conspiracy charge especially threatens reporter-source
transactions where the reporter promises not to disclose the identity of the source”).
237 Editorial, Time to Call It Quits: The Justice Department Should Drop its Misguided Prosecution of Two Former
AIPAC Officials, WASH. POST, March 11, 2009, at A14 (editorial urging Attorney General to drop charges).
238 See Lee, supra note 16, at 132–34. The solicitation theory relied on a finding in a 2008 Supreme Court case, United
States v. Williams, 553 U.S. 285 (2008), that solicitation of an illegal transaction is not speech deserving of First
Amendment protection. See id. at 133 (citing Brief of the United States 43–44, United States v. Rosen, 557 F.3d 192
(4th Cir. 2008) (No. 08-4358)). Williams addressed solicitation of child pornography, but Justice Scalia posed, as a
rhetorical question, whether Congress could criminalize solicitation of information thought to be covered by the
Espionage Act: “Is Congress prohibited from punishing those who attempt to acquire what they believe to be national-
security documents, but which are actually fakes? To ask is to answer.” Williams, 553 U.S. at 304.
239 See Tabassum Zakaria, U.S. to Drop Israel Lobbyist Case, REUTERS (May 1, 2009),
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Act, the judge interpreted the term willfully in connection with the phrase reason to believe it
could be used to the injury of the United States in Section 793 to require that the prosecution must
prove that the defendant disclosed the information with a “bad faith purpose to either harm the
United States or to aid a foreign government.”240 Later courts confronting the intent issue have
differentiated this case to conclude that the “reason to believe” standard does not require the
intent to do harm.241
The Julian Assange Charges
The government’s charges against Julian Assange are also relevant to whether a publisher of
classified information is subject to the Espionage Act. Whereas Private Manning was prosecuted
under the UCMJ before a court-martial, a grand jury empaneled in a Virginia federal court
investigated civilian involvement in Manning’s leaks.242 In 2018, the grand jury indicted Julian
Assange for conspiracy to commit computer intrusion under 18 U.S.C. §§ 371 and 1030 related to
the Manning leaks.243 Superseding indictments have added multiple Espionage Act charges.244
The United States alleges Assange solicited and assisted Private Manning and others in efforts to
obtain unauthorized access to government and private computer networks and in disseminating
national defense information gained through that unlawful access.245 Assange was arrested in the
United Kingdom in 2019 and is fighting extradition to the United States.246 He has appealed his
extradition at London’s High Court and to the European Court of Human Rights.247
Some observers argue that the Assange prosecution chills freedom of the press by seeking to
punish Assange for receiving and publishing newsworthy government secrets in a manner that is

https://www.reuters.com/article/us-security-pentagon/u-s-to-drop-israel-lobbyist-spy-case-idUKTRE54046320090501
(quoting Dana J. Boente, the then-Acting U.S. Attorney for the Eastern District of Virginia, where the trial was
scheduled to take place). The judge found the scienter requirement of 18 U.S.C. § 793 to require that the defendants
must have reason to believe the communication of the information at issue “could be used to the injury of the United
States or to the advantage of any foreign nation.” Rosen, 445 F. Supp. 2d at 639. Moreover, the judge limited the
definition of information related to the national defense to information that is “potentially damaging to the United
States or ... useful to an enemy of the United States.” Id. (citing United States v. Morison, 844 F.2d 1057, 1084 (4th
Cir. 1988) (Wilkinson, J., concurring)).
240 Rosen, 445 F. Supp. 2d at 626.
241 See United States v. Drake, 818 F. Supp. 2d 909, 916 (D. Md. 2011) (distinguishing intent requirements between
disclosures involving tangible documents and those involving intangible information); United States v. Kiriakou, 898
F. Supp. 2d 921, 924–27 (E.D. Va. 2012) (surveying case law and noting that a Fourth Circuit interlocutory appeal in
the Rosen case cast doubt on the district judge’s interpretation).
242 Press Release, Dep’t of Justice, Office of the Press Secretary, WikiLeaks Founder Charged in Superseding
Indictment, (Jun. 24, 2020), https://www.justice.gov/opa/pr/wikileaks-founder-charged-superseding-indictment. See
Second Superseding Indictment, United States v. Assange, No. 1:18cr00111 (CMH),
https://www.justice.gov/opa/press-release/file/1289641/download.
243 Indictment of Julian Assange, United States v. Assange, No. 1:18cr00111 (CMH) (E.D. Va. Mar. 6, 2018)
https://www.justice.gov/opa/press-release/file/1153486/download.
244 Second Superseding Indictment, United States v. Assange, No. 1:18cr00111 (CMH),
https://www.justice.gov/opa/press-release/file/1289641/download.
245 See id.
246 See, e.g., Jamie Grierson and Ben Quinn, Julian Assange’s Extradition from UK to US Approved by Home
Secretary, GUARDIAN (Jun. 17, 2022), https://www.theguardian.com/media/2022/jun/17/julian-assange-extradition-to-
us-approved-by-priti-patel.
247 Michael Holden, Julian Assange Appeals to European Court over U.S. Extradition, REUTERS (Dec. 2, 2022),
https://www.reuters.com/world/julian-assange-appeals-european-court-over-us-extradition-2022-12-02/.
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similar to traditional national security journalism.248 DOJ contends that this case differs from
traditional journalism because, according to the indictment, Assange actively solicited and
assisted in obtaining classified information and published that information in an unredacted form
and in a manner that created “grave and imminent risk” to U.S. intelligence sources identified in
the leaked documents.249
Gathering Evidence from the Press and Department of Justice Media Policies
On some occasions, legal disputes have arisen out of the government’s efforts to obtain testimony
or records from the members of the press as part of leak prosecutions. In the trial of former CIA
officer Jeffrey Sterling,250 the Obama Administration sought to compel New York Times reporter
James Risen to testify regarding classified information that the prosecution believed Sterling had
provided to Risen.251 Following Risen’s motion to quash the trial subpoena, the district court
concluded that, under the First Amendment, there is a qualified reporter’s privilege that may be
invoked when a subpoena seeks information about confidential sources or is intended to harass
the journalist.252 The district court limited the scope of Risen’s testimony such that he was not
compelled to reveal his confidential source.253 On appeal, the U.S. Court of Appeals for the
Fourth Circuit reversed the ruling, holding that there is neither a First Amendment privilege nor a
federal common-law privilege protecting journalists from being compelled to testify.254 Despite
prevailing on appeal, the government did not call Risen to testify at the jury trial.255
In the investigation of Donald Sachtleben over leaks of covert efforts to foil a bomb plot on a
U.S.-bound airliner,256 media outlets reported that DOJ was unable to identify the source of the
leaks until it issued subpoenas to obtain the calling records for twenty telephone lines associated
with AP bureaus and reporters.257 The targets of the subpoenas at the AP were reportedly not
notified that their information was being collected, prompting some members of the media to
criticize the government’s evidence-gathering methods.258

248 See, e.g., Gabe Rottman, The Assange Indictment Seeks to Punish Pure Publication, LAWFARE (May 24, 2019),
https://www.lawfareblog.com/assange-indictment-seeks-punish-pure-publication.
249 Press Release, Dep’t of Justice, Remarks from the Briefing Announcing the Superseding Indictment of Julian
Assange 1 (May 23, 2019), https://www.justice.gov/opa/press-release/file/1165636/download (prepared remarks by
Assistant Attorney General for National Security John C. Demers).
250 See infra § “Jeffrey Sterling, CIA Disclosures to New York Times Reporter James Risen.”
251 See United States v. Sterling, 818 F. Supp. 2d 945 (E.D. Va. 2011), rev’d, 724 F.3d 482 (4th Cir. 2013), reh’g en
banc denied, 732 F.3d 292, (4th Cir. 2013), cert. denied, 134 S. Ct. 2696 (2014).
252 Sterling, 818 F. Supp. 2d at 951.
253 Id. at 960.
254 Sterling, 724 F.3d at 504–05.
255 See Brief of Defendant-Appellant Jeffrey Alexander Sterling 13, Sterling, 724 F.3d 482 (4th Cir. 2013) (No. 15-
4297) (filed Feb. 22, 2016), https://sgp.fas.org/jud/sterling/022216-brief.pdf.
256 See infra § “Donald Sachtleben, Disclosure of Foiled Bomb Plot to the Associated Press.”
257 See Charlie Savage, Former F.B.I. Agent to Plead Guilty in Press Leak, N.Y. TIMES (Sep. 23, 2013),
https://www.nytimes.com/2013/09/24/us/fbi-ex-agent-pleads-guilty-in-leak-to-ap.html?searchResultPosition=1.
258 See, e.g., Milbank, supra note 220; Ravi Somaiya, Head of the A.P. Criticizes Seizure of Phone Records, N.Y.
TIMES (May 19, 2013), https://www.nytimes.com/2013/05/20/business/media/head-of-the-ap-criticizes-seizure-of-
phone-records.html. See also Amitai Etzioni, A Liberal Communitarian Approach to Security Limitations on the
Freedom of the Press, 22 WM. & MARY BILL RTS. J. 1141, 1143–44 (2014) (summarizing media reactions). But see,
e.g., Daniel J. Gallington, Editorial, There Is No Scandal in Tracking Down Leaks, U.S. NEWS & WORLD REP. (May 20,
2013), http://www.usnews.com/opinion/blogs/world-report/2013/05/20/obama-is-right-to-target-ap-national-security-
leaks.
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Similarly, the case of former State Department contractor Stephen Jin-Woo Kim’s disclosures to
Fox News correspondent James Rosen generated attention when media outlets reported that DOJ
subpoenaed Rosen’s emails without notice.259 Some observers asserted that the affidavit
supporting the subpoena suggested Rosen could be charged for violating the Espionage Act by
receiving classified information from a confidential source, but Rosen was never charged with a
crime.260
After these events, the Obama Administration convened a series of stakeholder meetings to
evaluate DOJ’s policies and practices for collecting evidence from the media.261 DOJ issued a
report on its revised policies in 2013 that, among other things, modified its notification
procedures before gathering evidence from the press and stated that “members of the news media
will not be subject to prosecution based solely on newsgathering activities.”262 In what DOJ
described as its “most significant change,” the revised policies required DOJ to provide notice to
and negotiate with members of the media before seeking their records related to newsgathering
activities unless the Attorney General determined that advance notice would pose a clear and
substantial threat to the integrity of the investigation, risk grave harm to national security, or
present an imminent risk of death or injury.263 According to the report, the notice and negotiation
requirements would apply “in all but the most exceptional cases.”264
During the Trump Administration and the early months of the Biden Administration, some media
outlets reported that government officials sought evidence from members of the press related to
their confidential sources in ways that raised questions as to whether DOJ was complying with its
news media policies.265 In July 2021, Attorney General Merrick Garland announced that he had
revised DOJ’s media policy to state that DOJ would no longer use subpoenas or other compulsory
legal process266 to obtain information from “members of the news media acting within the scope

259 See Application for a Search Warrant, Affidavit in Support of Application for a Search Warrant, and Search and
Seizure Warrant 3, P 3, No. 10-291-M-01 (D. D.C. Nov. 7, 2011) [hereinafter, “Rosen Warrant Affidavit”]; Charlie
Savage, Ex-Contractor at State Dept. Pleads Guilty in Leak Case, N.Y. TIMES (Feb. 8, 2014,).
https://www.nytimes.com/2014/02/08/us/politics/ex-state-department-contractor-pleads-guilty-in-leak-case.html. See
also Etzioni supra note 258, at 1143-44.
260 See, e.g., Michael Calderone & Ryan J. Reilly, DOJ Targeting of Fox News Reporter James Rosen Risks
Criminalizing Journalism, HUFFINGTON POST (May 20, 2013), http://www.huffingtonpost.com/2013/05/20/doj-fox-
news-james-rosen_n_3307422.html; Milbank, supra note 220; Editorial, Justice Department Run Amok on Journalists’
Sources, S.F. CHRON. (May 22, 2013), http://www.sfchronicle.com/opinion/editorials/article/Justice-Department-run-
amok-on-journalists-4540632.php. In its application for the search warrant, the government characterized Rosen as
having acted “much like an intelligence officer would run an [sic] clandestine intelligence source,” and it asserted in a
sworn statement that “there is probable cause to believe that the Reporter has committed a violation of 18 U.S.C. Sec.
793 (Unauthorized Disclosure of National Defense Information), at the very least, either as an aider, abettor, or co-
conspirator of Mr. Kim.” Rosen Warrant Affidavit, supra note 259, at 26-27.
261 DEP’T OF JUSTICE, REPORT ON NEWS MEDIA POLICIES (July 12, 2013),
https://www.justice.gov/sites/default/files/ag/legacy/2013/07/15/news-media.pdf [hereinafter, “2013 Media Policies
Report”].
262 Id. at 2. DOJ made additional revisions to media guidelines in 2015. See Policy Regarding Obtaining Information
from, or Records of, Members of the News Media; and Regarding Questing, Arresting, or Charting Members of the
News Media, 80 Fed. Reg. 2819 (Jan. 21, 2015) (codified at 28 C.F.R. pt. 50); Press Release, Dep’t of Justice, Office of
Public Affairs, Attorney General Holder Announces Update to Justice Department Media Guidelines (Jan. 14, 2015),
https://www.justice.gov/opa/pr/attorney-general-holder-announces-updates-justice-department-media-guidelines.
263 2013 Media Policies Report, supra note 261, at 2.
264 Id.
265 For background on the post-2013 subpoenas and other compulsory legal process used to obtain evidence from
members of the media, see Secrecy Orders Hearing, see supra note 2, at 6–49.
266 Compulsory legal process includes “subpoenas, search warrants, court orders issued pursuant to 18 U.S.C. 2703(d)
(continued...)
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of [their] newsgathering activities.”267 DOJ issued new regulations, 28 C.F.R. § 50.10,
incorporating the revised policy in October 2022.268
The revised media policy includes certain limits and exceptions on its restrictions.269 In particular,
the prohibition on subpoenas and compulsory process does not apply when the member of the
news media is not acting within the scope of newsgathering.270 The regulations define
newsgathering as the process of pursuing or obtaining information for purposes of producing
content intended for public dissemination.271 The regulations do not define member of the news
media, but they do include a process for resolving close or novel questions about a person’s
media status and whether the person was engaged in newsgathering.272 The regulations also do
not apply when there are reasonable grounds to believe that the member of the media is an agent
of a foreign power or a member or affiliate of a foreign terrorist organization or related terrorist
entity or is engaged in certain terrorism-related activity.273
Considerations for Congress and Recent Legislative
Proposals
Criminal prohibitions on leaks and other unauthorized disclosures of protected government
information highlight the tension between the public’s interest in government activity and the
United States’ interest in operating effectively and protecting national security.274 Some observers
describe the current laws protecting classified information as a patchwork of mostly outdated
provisions that are vague and inconsistent275 or assert that these laws may not cover all the
information the government legitimately needs to protect.276 Others argue that the laws fail to take
sufficient consideration of the value of releasing to the public information that the government

and 3123, interception orders issued pursuant to 18 U.S.C. 2518, civil investigative demands, and mutual legal
assistance treaty requests.... ” 28 C.F.R. § 50.10(b)(2).
267 Memorandum from the Office of the Att’y Gen. on Use of Compulsory Process to Obtain Information from, or
Records of, Members of the News Media 1 (July 19, 2021), https://www.justice.gov/ag/page/file/1413001/download.
268 Memorandum from the Office of the Att’y Gen. on New Regulations Regarding Obtaining Information From or
Records of Members of the News Media; and Regarding Questioning, Arresting, or Charging Members of the News
Media (Oct. 26, 2022), https://s3.documentcloud.org/documents/23199931/ag_memo_media_policy_20221026.pdf.
The regulations apply to efforts to seek testimony, physical documents, telephone records, metadata, and digital
content. 28 C.F.R. § 50.10(b)(2)(i).
269 See 28 C.F.R. § 50.10(b)(3) &), id. § 50.10(d).
270 Id. § 50.10(d).
271 Id. § 50.10(b)(2)(ii).
272 See id. § 50.10(e). When there is a close or novel question as to whether or entity is a member of the news media or
acting within the scope of newsgathering, the determination of must be approved by the Assistant Attorney General for
the Criminal Division. Id. When the Assistant Attorney General finds there is “genuine uncertainty” as to whether a
member of the news media is engaged in newsgathering, the Attorney General must approve the determination
concerning newsgathering. Id. § 50.10(e)(2).
273 See id. § 50.10(b)(3).
274 See, e.g., Lee C. Bollinger and Geoffrey R. Stone, Opening Statement, in LEE C. BOLLINGER AND GEOFFREY R.
STONE, NATIONAL SECURITY, LEAKS, AND FREEDOM OF THE PRESS: THE PENTAGON PAPERS FIFTY YEARS ON 264 (2021),
at xv (“One of the most vexing and perennial questions facing any democracy is how to balance the government’s
legitimate need to conduct its operations—especially those related to protecting national security—with the public’s
right and responsibility to know what the government is doing.”).
275 See sources cited supra note 17.
276 See, e.g., House Judiciary WikiLeaks Hearing, supra note 215.
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would prefer to keep out of view.277 Some Members of Congress have sought to repeal or amend
the Espionage Act to address these criticisms.278
The proposed Espionage Act Reform Act of 2022, introduced in the 117th Congress, for example,
would have limited elements of the Espionage Act to those who receive official access to
classified information, such as government employees and contractors.279 This change would
have altered the Espionage Act so that some provisions applied only to the individual responsible
for the initial unauthorized disclosure, not to an individual or organization that receives leaks and
publishes them.280 Some commentators have argued that the press and other online platforms too
frequently publish classified information and that the Espionage Act should be amended to more
clearly apply to both the originators and the recipients of leaks.281 Still others have argued that
Congress should modify the executive branch’s classification system and create more avenues to
challenge classification decisions and make documents publicly available.282
Legislative proposals have also addressed DOJ’s media policies and ability to obtain evidence
from members of the press. Introduced in the 117th Congress, the Protect Reporters from
Exploitative State Spying (PRESS) Act would have placed limitations on the United States’
ability to compel disclosure of information that reveals a journalist’s source or records that were
obtained or created while engaging in journalism.283 The Free Flow of Information Act,
introduced most recently in the 115th Congress, would have defined the conditions under which
the United States can compel a member of the media to provide testimony or documents related
to information gained while engaging in journalism.284

Author Information

Stephen P. Mulligan
Jennifer K. Elsea
Legislative Attorney
Legislative Attorney

277 See id.
278 See, e.g., @RandPaul, TWITTER (May 12, 2022, 11:02 AM),
https://twitter.com/RandPaul/status/1558579480171614209 (“It is long past time to repeal [the Espionage Act].... ”).
279 Espionage Act Reform Act of 2022, H.R. 8533, 117th Cong. § 2 (2022).
280 The proposed act would have allowed prosecutions against those who did not have official access to classified
information (e.g., those outside government that received classified information) if the accused “directly and materially
aids, or procures in exchange for anything of monetary value, the commission of an [Espionage Act] offense ... with the
specific intent” to harm the United States or benefit a foreign government to the United States’ detriment. Id.
281 See Louis Michael Siedman, Leaks in the Age of Trump, in NATIONAL SECURITY, LEAKS, AND FREEDOM OF THE
PRESS, supra note 274, at 264.
282 See, e.g., Report of the Commission, in NATIONAL SECURITY, LEAKS, AND FREEDOM OF THE PRESS, supra note 274, at
275–78 (collecting the recommendations from a five-person “Commission” on addressing leaks comprised of
government officials, academics, and journalists). See also Modernizing the Government’s Classification System,
Hearing Before S. Comm. Homeland Sec. and Gov’t Aff., 118th Cong. (2023),
https://www.hsgac.senate.gov/hearings/modernizing-the-governments-classification-system/ (discussing avenues to
reduce over-classification, increase transparency, and improve the classification process).
283 See PRESS Act, H.R. 4330, 117th Cong. § 3 (2022).
284 See Free Flow of Information Act of 2017, H.R. 4382, 115th Cong. § 2 (2017).
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