The Espionage Act Is Again Deployed Against a Government Official Leaking to the Media

The Justice Department on Wednesday announced its eighth prosecution under President Donald Trump for leaking sensitive information to the media, expanding a crackdown on press disclosures that began during the Obama administration and has only accelerated under Trump.

In an eight-page indictment unsealed on Wednesday, prosecutors alleged that Henry Kyle Frese, a 30-year-old counterterrorism analyst at the Defense Intelligence Agency, accessed intelligence reports unrelated to his job and discussed their contents with two reporters. The indictment describes one intelligence report as being “related to a certain foreign country’s weapons systems.”

According to an affidavit to seize Frese’s cellphone that was also unsealed, a judge in the Eastern District of Virginia authorized Frese’s communications to be monitored in August, which allowed the FBI to intercept his phone calls and access his private messages on social media.

The indictment does not name either of the reporters, but contains information news outlets have used to identify them as Amanda Macias, a national security reporter for CNBC, and Courtney Kube, a national security reporter for NBC. Last year, CNBC published a story that the Chinese military was heavily fortifying islands “west of the Philippines,” which cited American “intelligence assessments.”

NBC also published a much-cited series of stories in 2018 with Kube’s byline saying U.S. intelligence assessed that North Korea was concealing a growing nuclear program, despite Trump’s Twitter assurances that “there is no longer a nuclear threat from North Korea.”

In a statement to the press, Assistant Attorney General for National Security John Demers said, “Frese was caught red-handed disclosing sensitive national security information for personal gain.”

Criminal probes into media leaks were extremely rare before 2009, but the Obama administration launched an unprecedented crackdown using the 1917 Espionage Act. Civil liberties and press freedom advocates have objected to the use of the World War I-era law, because it prevents defendants from asserting at trial that their disclosures were in the public interest. Use of the law also treats leakers and whistleblowers as spies — it’s called the Espionage Act, after all. Congressional Democrats have reacted with indignation as Trump has recently referred to whistleblowers in the Ukraine affair as spies.

The Justice Department has traditionally reserved the harshest penalties for government employees accused of leaking entire documents to journalists, rather than just describing their contents. But there is a precedent for Frese’s case. The Obama administration used the Espionage Act to prosecute Stephen Kim, a State Department expert on North Korea, alleging that in 2009, he spoke with Fox News reporter James Rosen shortly after accessing a recent intelligence report. He pleaded guilty and was sentenced to a 13-month term in federal prison.

According to the U.S. Press Freedom Tracker, the Trump administration has prosecuted seven government employees for leaking information to the press on a wide range of topics, four of them using the Espionage Act. In 2017, the Trump administration arrested and charged Air Force veteran and National Security Agency contractor Reality Winner with leaking a document about Russian attempts to hack into voting infrastructure in 2016. Last year, the Trump administration charged officials in the Treasury Department and Internal Revenue Service with leaking information about suspicious bank transactions that involved Trump associates Paul Manafort and Michael Cohen, respectively.

Press freedom advocates were also alarmed earlier this year by the Justice Department’s decision to indict WikiLeaks founder Julian Assange — the first such instance of indicting a publisher of U.S. national security information. The Justice Department charged Assange with conspiring to help intrude a military computer system.

Former Attorney General Jeff Sessions testified in 2017 that the Justice Department had more than two dozen open investigations into media leaks.

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