Donald Ritchie, author of Reporting from Washington: The History of the Washington Press Corps, Our Constitution, and The Congress of the United States: A Student Companion, has been Associate Historian of the United States Senate for more than three decades. In the post below he puts the guilty verdict in the Scooter Libby trial in perspective.
The conviction of Vice President Dick Cheney’s former chief of staff, Lewis “Scooter” Libby, for lying,
perjury and obstruction of justice marks a major milestone in the long and tortuous history of leak investigations in the federal government. These go back as early as 1800, when Federalists in the Senate conducted an investigation into who leaked to the press the text of a bill to decide disputed presidential electors (that year the Electoral College tied and threw the choice of president to the House of Representatives). Several senators who supported Thomas Jefferson in that election had leaked the bill, but the editor who published it declined to name them and the investigation evaporated after Jefferson won the presidency.
In 1848, the U.S. Senate imprisoned the Washington correspondent for the New York Herald, in the Capitol Building to make him confess how he got the still secret treaty of Guadalupe Hidalgo, ending the Mexican War. His publisher doubled his salary for every day in captivity, reducing his incentive to name his source, and the Senate had to let him go. In 1871, two reporters for the New York Tribune underwent a similar lock-up in a Capitol committee room for publishing another secret treaty, and that investigation similarly ended unresolved. In those days the Senate debated almost all treaties and nominations behind closed doors, but the next day the newspapers ran detailed stories about the substance of the secret sessions. Reporters joked that if Congress wanted better coverage it should do all of its business in secret. Whenever tempers flared, “smelling committees” would be appointed to hunt down the source of a leak. Invariably they failed, since neither the reporter nor the source had much reason to cooperate with the investigators.
By the twentieth century, leaks had become a mainstay of government. Presidents railed against the release of unauthorized information while alternately leaking whatever suited their purposes. During Lyndon Johnson’s administration, his ambassador to South Vietnam, Henry Cabot Lodge, once lectured reporters that leaking was a “presidential prerogative,” and that other officials who leaked were “usurping” the president’s right. President Richard Nixon deplored leaks and recruited the infamous White House plumbers to plug them, yet in a relaxed moment Nixon reminisced that as a member of the House Un-American Activities Committee investigating Alger Hiss: “I leaked everything, I mean, everything that I could. I leaked out the testimony. I had Hiss convicted before he ever got to the grand jury.” Nixon himself became the victim of Washington’s most famous leaker, “Deep Throat,” who turned out to be the deputy director of the FBI, W. Mark Felt. He leaked to prevent Nixon from derailing the FBI’s investigation of the Watergate burglary.
Scooter Libby’s conviction will not dry up government leaks, since someone in one branch or another will always have a compelling reason to make public information that others in the government seek to keep secret. Leak investigations will likely continue to be difficult to conduct, since reporters will do everything possible to protect their sources (and maintain their access to high-placed information). But prosecutor Patrick Fitzgerald has now prominently posted a warning sign about the consequences of lying about a leak under oath.