"Former Senate Aide Is Charged As Obsession Over Leaks Boils" is the headline over a front-page New York Times article that reports about the arrest of James Wolfe, who was director of security at the Senate Intelligence Committee. The jump headline inside the paper is "Ex-Senate Aide Is Charged Amid Obsession Over Leaks."
The headline's spin of the narrative as demonstrating an "obsession over leaks" is odd. The Times article discloses that Wolfe had a three-year romantic relationship with a national security and law enforcement reporter, Ali Watkins, who is now employed by the New York Times. The Times article says that Wolfe is 57, though the Justice Department press release announcing his indictment says he is 58. The Times article doesn't give Watkins' age, but a news article from 2014 describes her as a 22-year-old senior at Temple University. The Times article says Wolfe is charged with lying to the FBI about the relationship.
The Times has no problem — in fact, it is leading the charge — in having Trump administration or campaign officials prosecuted for allegedly lying to the FBI in attempts to cover up crimes. But when it comes to its own sources being caught for that sort of thing, the headline is "obsession." Why don't the headlines over the Mueller articles read "...Amid Special Counsel's Obsession Over Russia"?
The Times article concedes that Trump's pursuit of leakers isn't new. "The seizure suggested that prosecutors under the Trump administration will continue the aggressive tactics employed under President Barack Obama," the article says.
Perhaps some Times editor agreed with me that the "obsession" headline was spinning too hard in favor of the Times. For later editions, the print headline was apparently changed to a more neutral "Former Senate Aide Is Charged; Times Reporter's Records Seized."
Anyway, I'm all for newsgathering, but it doesn't seem to me to indicate an "obsession" for the Justice Department or the rest of the executive branch to be somewhat disturbed that the director of security at the Senate Intelligence Committee would be lying to the FBI about his relations with a scoop-getting reporter.
I will say, in Wolfe's defense, that he is charged with violating three counts of 18 USC 1001. That is the federal law that provides for a fine or up to five years in prison for anyone who "knowingly and willfully" makes any materially false statement or representation "in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States." If the indictment causes news organizations to take a principled new look at that statute — which was also used against Martha Stewart, and Paul Manafort, and was raised against Hillary Clinton — then that would be a wonderful thing.
As a New York Sun editorial put it:
The law has been on the books since 1863, but it was amended and expanded by Congress in 1934 as the New Deal required more federal disclosures. Today, Section 1001 is well known as dangerous territory by legal experts on all sides of the American political spectrum, and it may well be worth a skeptical re-examination by Congress.
"Even in our age of ever expanding federal power, the reach of this statute and the discretion it lodges in prosecutors is awesome," wrote a veteran federal prosecutor, Solomon Wisenberg, in an article about the law. Mr. Wisenberg, a conservative who served as deputy independent counsel in the Whitewater case and who is now in private practice in Washington, wrote, "The vast majority of federal agents and attorneys are honorable people who would not intentionally abuse this statute....But the potential for abuse of this statute is great, even for normally honest people."
His qualms were shared by a liberal Supreme Court justice, Ruth Bader Ginsburg, who, in a concurring opinion in the 1996 Supreme Court case Brogan v. United States, warned of "the sweeping generality" of Section 1001's language.
Justice Ginsburg wrote: "The prospect remains that an overzealous prosecutor or investigator — aware that a person has committed some suspicious acts, but unable to make a criminal case — will create a crime by surprising the suspect, asking about those acts, and receiving a false denial."
It was a remarkably sagacious warning, as that scenario that Justice Ginsburg warns of bears a certain resemblance to the one in which Ms. Stewart finds herself, with the federal prosecutors unable to make a criminal case against her for insider trading, but nonetheless finding something to charge her with.
In many cases, prosecutors will use their discretion to avoid filing such charges. It's certainly hard to think of another case in which a person has been prosecuted for violating this section alone, without also being prosecuted for an underlying criminal act. The closest thing people seem to be able to remember is the matter of President Clinton's secretary of housing and urban development, Henry Cisneros, who paid a $10,000 fine and pleaded guilty to lying to the FBI about the duration and amount of payments he made to a former mistress.
Justice Ginsburg wrote, "the Department of Justice has long noted its reluctance to approve §1001 indictments for simple false denials made to investigators." ...