When is a 'leak' not a 'leak'? When it falls within our right to know
If the White House were open and honest, there would be no need for legal disclosures from sources.
By Thomas W. Wexler July 28, 2017 — 6:12pm
When the White House talks “leaks,” we should first understand what they mean. Normally, the definition would mean a disclosure of secret information. But there are secrets that are legally protected and others that are merely matters of preference. The White House seems to infuse the latter with a sense of illegality that is simply not deserved.
Here are the types of leaks that could possibly be involved:
1. An illegal disclosure of classified information.
2. An illegal disclosure of secret conversations about things such as military strategy.
3. An illegal disclosure by someone who has an enforceable obligation not to disclose; such as an attorney or doctor who has a professional confidential obligation.
4. A legal disclosure of something that the White House would merely prefer be kept out of public view.
5. A legal disclosure of communications that were informally expected by the participants to be confidential, but which are not subject to any legal or ethical obligations of nondisclosure.
The problem with the White House diatribe about leaks is that, for the most part, they are talking about legal disclosures. The White House seems to infer illegality, but that is not what they seek to restrain. That’s a problem, in part because of the way the White House does business. If they were open and honest about what was being considered and planned, there would be no need for legal disclosures from confidential sources. But when the administration’s communicators deflect fair questions from the media with “the president has made his position very clear,” then secrecy penetrates the public right to know.
We, the public, should jealously protect our right to know every single thing that the administration does and that is not otherwise legally prohibited to us. If the administration is discussing matters in an inappropriate way, or planning controversial or offensive actions, we should know. And if such disclosures are true, and it pains the administration that the information is now public, so be it. Legal disclosures are really not leaks at all.
Thomas W. Wexler, of Edina, is a retired district court judge.