Could the unauthorized receipt of classified information be a felony? Judge Leonie M. Brinkema made that startling claim in passing in a July 29 memorandum opinion (pdf) in the case of suspected leaker Jeffrey Sterling that was unsealed yesterday. But her statement is almost certainly a misunderstanding and a misrepresentation of the law.
Judge Brinkema’s memorandum opinion, first reported and released by the New York Times, was written to substantiate an order issued last week that limited the scope of testimony of Times reporter James Risen in the upcoming trial of Mr. Sterling, and excused Mr. Risen from identifying his source, who the prosecution says was Mr. Sterling. The newly released opinion affirmed the existence of a qualified reporter’s privilege which protects a journalist’s confidential relations with a source under some circumstances.
But astonishingly, in her explanation of why certain remarks previously made by Mr. Risen to a third party would not be considered hearsay and could be admitted at trial, Judge Brinkema wrote (at page 25):
“Risen’s statements are adverse to his penal interest because receiving classified information without proper authorization is a federal felony under 18 U.S.C. 793(e).”
This seems quite wrong. The espionage statutes including 793(e) are notoriously ambiguous and susceptible to multiple, conflicting interpretations, but no one has ever read them as Judge Brinkema did. Section 793(e) deals with unauthorized transmission of classified information; contrary to her assertion, it does not prohibit unauthorized receipt at all.
Judge Brinkema offered further support for her claim: “see U.S. Sentencing Guidelines Manual § 2M3.3 (providing a base offense level 29 for convictions for the ‘Unauthorized Receipt of Classified Information.’),” she wrote.
But upon inspection, that citation does not hold up either. Section 2M3.3 provides sentencing guidelines for multiple statutes (18 USC 793d, e, and g; 18 USC 798; and 50 USC 783), one of which — 50 USC 783b — does indeed concern unauthorized receipt of classified information. But that one applies only to agents or representatives of a foreign government, or to members of a Communist organization.
In other words, unless Mr. Risen is a foreign agent or a Communist, there is no statute that specifically prohibits him from receiving classified information without authorization. There just isn’t.
(Footnote 6 of the new opinion adds: “The government clearly recognizes Risen’s potential exposure to criminal liability and has offered to obtain an order of immunity for him.” The nature of the supposed criminal liability or the proposed immunity was not spelled out. Nor, of course, has Mr. Risen actually been charged with any offense.)
Judge Brinkema got it wrong, I believe. That can happen. The point is incidental to her larger argument, but unfortunately it adds new confusion to an area of the law that is already complicated and contested. Ideally, one hopes that she would see fit to correct the record.