Having read through the entire indictment of James Wolfe, I have to say that the Feds were justified in taking the extreme step of looking at New York Times reporter Ali Watkins’s electronic records. I don’t say this lightly, and I’m not convinced that they did everything correctly in this case, but the behavior of Wolfe constituted a legitimate national security risk warranting an override of the presumed reporter/source privilege.
The primary problem here was more general than the specific role of Ali Watkins. Mr. Wolfe was the Senate Select Committee on Intelligence’s director of security from May 1987 to December 2017. In that role, he was responsible for safeguarding classified and top secret material and handling highly sensitive intelligence provided to the committee by the executive branch of the government. When the executive branch handed over material to the committee pertaining to a counterintelligence investigation on Carter Page, that information promptly leaked to the press, resulting in an April 3, 2017 BuzzFeed article by Ms. Watkins. Then, subsequently, when a subpoena was issued to Mr. Page compelling his appearance before the committee, that news immediately leaked, too.
A bit of sleuthing by the FBI turned up pictures of Mr. Wolfe and Ms. Watkins together. When questioned on December 15, 2017, Wolfe denied having any contact or relationship with Watkins. But when confronted with the pictures, he confessed to having had a four-year romantic relationship with her while still denying that he was her source for the scoop on Page. Wolfe also lied about having contact and being a source for two other reporters.
In the case of Watkins, however, Wolfe had already admitted lying to the FBI about their relationship, and they had good reason to believe that he actually was her source. What they needed to confirm this was evidence that they had been in communication in a few specific time periods. Watkins would take a leave of duty within a couple of weeks of his interview with the FBI, but he didn’t formally retire until later. And that’s what distinguishes this case from many others.
As the indictment explains, Wolfe was in the habit of meeting surreptitiously with reporters, in stairwells of the Hart Senate Office Building and in out-of-the-way restaurants. He used encrypted messaging applications to communicate highly sensitive information with reporters. There were at least two reasons why the FBI needed to prove the case, and I’d add a third.
If someone in a position as sensitive as Wolfe’s is leaking, that needs to be stopped. And when someone who is a security sieve has been in that same position for twenty-nine years, that’s a huge concern requiring a major counterintelligence investigation to see who they’ve talked to and what kind of damage they may have done over decades of time. The best way to conduct that investigation is to secure to cooperation of the suspect, and that requires building a solid case against them.
Lastly, if the executive branch cannot trust the congressional intelligence committees to safeguard information, they will not, and should not cooperate with them. There’s always a worry that a politician will leak, and House Intelligence chairman Devin Nunes is notorious in that regard. But a leaking director of security is a much deeper structural problem.
For these reasons, I believe the Feds met the requirements of their own regulations in this case.
(3) The Department views the use of certain law enforcement tools, including subpoenas, court orders issued pursuant to 18 U.S.C. 2703(d) or 3123, and search warrants to seek information from, or records of, non-consenting members of the news media as extraordinary measures, not standard investigatory practices. In particular, subpoenas or court orders issued pursuant to 18 U.S.C. 2703(d) or 3123 may be used, after authorization by the Attorney General, or by another senior official in accordance with the exceptions set forth in paragraph (c)(3) of this section, only to obtain information from, or records of, members of the news media when the information sought is essential to a successful investigation, prosecution, or litigation; after all reasonable alternative attempts have been made to obtain the information from alternative sources; and after negotiations with the affected member of the news media have been pursued and appropriate notice to the affected member of the news media has been provided, unless the Attorney General determines that, for compelling reasons, such negotiations or notice would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm.
A significant part of the controversy here is that Ms. Watkins was not given “appropriate notice” that her electronic records were being turned over to the FBI. The attorney general must have determined that notifying her would be a threat to the investigation and to national security. I can’t judge the risk to the investigation, but the “grave harm” element is clearly present.
I think anyone who is prepared to say this breach of the reporter/source privilege is acceptable needs to define precisely why they feel that way so that it’s clear what is not acceptable. With the caveat that I’m uncertain why Watkins couldn’t be notified, the reason I believe her records were fair game is because of the unique position that Mr. Wolfe held and long period of time he held it. It was not enough for him to be fired or to resign, and he had not resigned when the information was initially sought. A retroactive damage assessment needed to be done, and Wolfe’s cooperation was an essential component to getting a thorough assessment. And, beyond plugging the leak and figuring out the extent of his leaking, the facts were important for restoring a functional oversight role for the intelligence committees.
This is not an ordinary case, and it was unlike a situation where a political appointee at the State Department is leaking to reporters. That appointee will not be there for twenty-nine years and their behavior doesn’t implicate Congress’s ability to conduct oversight.
For these reasons, I reluctantly approve of the extraordinary measures that were taken in this case. But I definitely worry about the risk it will set a precedent for other cases that don’t have the same merits.
