Administrative Subpoenas for Leak Investigations?

The possibility of using subpoenas to compel testimony from reporters or others in leak investigations outside of a criminal prosecution is being floated by the Intelligence Community Inspector General.

But such authority would have to be granted legislatively, and so far there is no sign that Congress is considering doing so.

The government’s interest in using administrative subpoenas was mentioned in the latest semi-annual report of the IC Inspector General:

 “In March 2019, [IC] Inspector General Atkinson and the Inspector General of the Department of Justice met a second time with the President’s Intelligence Advisory Board to discuss, among other things, legislative approaches to reduce unauthorized disclosures, including testimonial subpoena authority for OIGs to compel non-agency individuals to provide testimony in administrative investigations.” (page 19)

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Administrative investigations of leaks may occur before a criminal proceeding has been initiated, or after the Justice Department has declined criminal prosecution, as it often does. (In 2017-2018 there were over 200 referrals to the Justice Department of suspected criminal leaks, but only a handful of actual prosecutions ensued.)

As an alternative to criminal prosecution, administrative investigations can result in punishment of suspected leakers in the form of loss of security clearance, termination of employment, or monetary penalties.

In a criminal case, prosecutors can subpoena witnesses such as reporters and seek to compel their testimony. In the case of accused leaker Jeffrey Sterling, an appeals court concluded in a 2013 opinion that the government was within its rights to subpoena reporter James Risen. Although Risen did not ultimately testify in that case, the ruling authorizing a subpoena for a reporter in such circumstances remains in place after the US Supreme Court declined to review it.

But in internal administrative leak investigations, subpoena authority is not currently available (outside of espionage investigations involving a foreign power). It is this power which the IC Inspector General has now raised for discussion.