© Moriah Ratner
Rep. Trey Gowdy (R-S.C.) asked FBI Director James Comey on Monday whether reporters could be prosecuted for leaks — despite a longstanding tradition and court history of not prosecuting the press.
“Is there an exception in the law for current or former U.S. officials requesting anonymity?” Gowdy asked Comey during testimony about Russia's interference in the U.S. election. Gowdy was asking about U.S. statute that forbids the leaking of classified material.
The FBI director said there was not an exception for U.S. officials.
“Is there an exception in the law for reporters who want to break a story?” asked Gowdy.
Comey struggled to answer the question, saying it was something that had never been prosecuted “in my lifetime.”
“That’s a harder question,” said Comey.
The Obama administration was tough on journalists, including labeling a Fox News reporter as an unindicted co-conspirator in a leaking case and tapping reporters' phones. Reporters were not, however, prosecuted by the administration.
“There have been a lot of statutes involved in this investigations for which no one has ever been prosecuted or convicted, and that does not keep people from discussing those statutes — I’m thinking namely of the Logan Act," Gowdy said.
Michael Flynn, the one-time national security advisor, came under fire early in the Trump presidency for potentially violating the Logan Act — an obscure, almost entirely unused law forbidding negotiations between citizens and foreign adversaries — because he had opened a dialogue about sanctions with the Russian ambassador before Trump took office.
Gowdy also asked Comey about whether former Obama administration officials — including former Director of National Intelligence James Clapper, former CIA Director John Brennan, former National Security Adviser Susan Rice, former National Security Adviser Ben Rhodes, former Attorney General Loretta Lynch and former acting Attorney General Sally Yates — and Obama himself had access to transcripts of Michael Flynn's communications with Russian ambassador Sergey Kislyak, implying that they could have leaked them to the press.
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