Leakers Are Liars. Sometimes That's OK.
One important lesson from former FBI Director James Comey’s congressional testimony on Thursday is that leaking needs an ethical structure. Other human activities have ethical structures. Leaking should too.
Comey told the Senate Intelligence Committee that he leaked the details of his meeting with President Donald Trump to pressure the administration to appoint a special counsel to investigate Russia's interference in the 2016 election. That seems to me an admirable purpose. But not all leaks are equally admirable, no matter how voracious our appetite for them.
Let’s begin with a simple proposition: Leaker are liars. Seriously. This is equally true of good leakers and bad ones. The leaker goes to work every day and implicitly tells colleagues, “You can trust me with Secret A.” Then the leaker, on further consideration, decides to share Secret A with the world. The next day the leaker goes back to work and says, “You can trust me with Secret B.” But it’s a lie. The leaker cannot be trusted. 1
The lie matters because in human affairs generally there is a strong ethical presumption in favor of telling the truth. 2 The liar does a moral wrong to the person to whom he lies. Similarly, the leaker does a moral wrong to the colleagues who entrust him with their secrets. The leaker lives a double life, wishing to enjoy the benefits of the job in which he is entrusted with sensitive information, and at the same time feeling free to betray the trust others invest in him.
Of course the presumption against lying is not inviolate. With a sufficiently strong reason, one can overcome it. The collection of misdeeds known collectively as Watergate might never have come to public attention in the absence of leaks to the press. But this is where we need to come up with a set of ethical principles. Simply to leave the matter to the leaker’s discretion is really to say that there is no presumption at all. Of course we do not have space here to develop the matter in detail. We can, however, sketch two preliminary points.
(1) The leaker’s motive matters. 3 Consider an analogy. You tell your best friend an embarrassing secret, but only after the friend swears not to tell a soul. You discover a few days later that your secret is out. Your best friend has betrayed you. You’re not going to be any happier if your best friend says to you, “I had a good reason.”
Nevertheless, the reason might make an ethical difference. If you tell your friend that you are addicted to painkillers, and your friend tells others in order to arrange an intervention that might save your life, your friend arguably has chosen the lesser of two evils. (Immanuel Kant would disagree, but let’s get past that.) If you tell your friend that you are thinking about leaving your spouse and your friend tells others because your friend likes to gossip, your friend’s justification is obviously too small. 4
But we should also consider the strength of your expectation that your secret will be kept. What you tell your lawyer or your therapist or the leader of your congregation you reasonably expect will not be shared with anyone, except (perhaps) when the law requires otherwise. In the case of government officials, although the people’s business should generally be conducted in the sunshine, there are often good reasons for confidentiality. 5
Let’s apply this to Comey. He leaked memoranda that he himself had authored. The memos recounted his conversations with the president, conversations the president obviously considered confidential. 6 So the presumption against disclosure was very strong. Nevertheless, Comey believed that things had reached the point where the appointment of a special counsel was necessary. And although I am, as regular readers know, no fan of special counsels, the purpose seems sufficient to justify the breach. The director of the Federal Bureau of Investigation is in a unique position to appreciate whether there exists sufficient suspicion of criminal behavior to justify an investigation. His judgment may turn out to be wrong, but he certainly seems the right individual to exercise it.
On the other hand, there were other avenues Comey could have pursued. For example, he could have sent his memoranda to the committee rather than to a friend who was to share them with the press. The availability of options other than going public is a factor the ethical leaker must consider seriously.
(2) The timing matters. As soon as Robert Mueller III was appointed as special counsel, the justification for further leaks would disappear. 7 The purpose that motivated the leaks had been accomplished. Similarly, once you’ve agreed to seek treatment, the friend who told others about your addiction has no justification for sharing your secret more widely.
This makes no difference in Comey’s case. But there are other leakers, and, evidently, a lot of them. Before the administration caved in and agreed to an outside investigation, one could argue that those who were furiously leaking about Russia and the Trump campaign were doing the same thing that Comey finally felt forced to do – ramping up the pressure so that a special counsel would be appointed. But, here again, since Mueller took over, that justification no longer exists. In other words, however strong the ethical case for leaking was before the Mueller appointment, it is a good deal weaker now. A continuing flood of leaks might even interfere with Muller’s investigation – a possibility that any would-be leaker ought to weigh.
I have been discussing here what is ethical, not what is legal. I take it for granted that many leakers may be breaking the law, and some few may even be prosecuted. 8 That is a separate issue, one that I have addressed elsewhere. But ethics matter too. In some ways they matter more, for they guide us in the shadowy spaces where few are likely to discover what we have done.
In a time when government keeps far too many secrets, leaks are often the only way we find out about what public servants are doing. But the leaker’s motives and timing matter. What Comey said in his testimony was reasonable. Now that Muller is busily investigating, perhaps it’s time the flood of leaks slowed to a trickle.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
This analysis would not apply to the case of an "authorized" leak, a tactical decision made with the knowledge and concurrence of all or most of the key participants. But that is a matter for another day.
The proposition that telling the truth is morally superior to lying is controversial in philosophy. The reasons for my agreement are set out in my book Integrity. The dissents from this view are easily discoverable.
News outlets generally enforce a rule that a story resting on unnamed sources must disclose the reason that the sources prefer not to be named. A better rule would require the story to disclose the motive that has led the unnamed sources to tell someone else’s secrets.
True, you also share some of the blame, and not only for your poor judgment in friends. You have also violated what I like to describe as the First Rule of Secrets, a guideline my mother taught me: Always assume that the person you tell your secrets will tell as many people as you have told.
The theologian Matthew Shadle, in a thoughtful blog post, proposes that we should construct an ethics of leaks beginning with the presumption that government should be transparent. From that starting point he derives an interesting three-part test for the rightness of any particular leak. (Shadle agrees with the proposition that there are circumstances in which the government’s internal deliberations and information are also entitled to a presumption of confidentiality.)
Although we are discussing law, not ethics, let us note that the president has the right to assert executive privilege to prevent the disclosure of such conversations. As President Richard Nixon learned, however, the privilege is not absolute.
The firing of Comey led to Mueller’s appointment. Suppose that Comey had not been fired but had still leaked the documents hoping to force an outside investigation. One could argue that at this point, having achieved his goal, he should have resigned. (This argument was made during Watergate.) But I am not sure this is correct, and in any event do not have the space to pursue it here.
Journalists assert that prosecutions of leakers – as well as pressuring journalists to disclose their sources – reached a new high under President Barack Obama.
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