On October 31, 2018, the Reporters Committee for Freedom of the Press filed an application to unseal court documents that could shed light on how the U.S. government used various law enforcement tools in connection with the leak investigation and prosecution of Terry Albury. The application seeks, among other things, materials related to any search warrants or court orders that the government might have sought and used to investigate and capture Albury’s communications with a member of the media.
Albury, a former FBI special agent in the Minneapolis field office, is the second person in this administration to be charged and prosecuted under the Espionage Act for sharing classified information with a journalist. On October 18, 2018, he was sentenced to four years of imprisonment, the second longest sentence imposed by a federal court in a media leak case after Reality Winner’s 63 months. Winner was the first person to be sentenced under the Espionage Act since President Trump took office.
Last April, Albury pled guilty to two Espionage Act charges for unlawfully retaining and leaking to the press information concerning FBI’s policies on recruiting informants and surveilling individuals suspected of terrorism threats in the Somali community in Minneapolis. Albury’s attorneys argued that Albury, as an African-American of East African descent, and the only black field agent in Minnesota, was driven by “conscientious commitment to long-term national security and addressing the well-documented systematic biases within the FBI.” An amicus brief filed by 17 First Amendment legal scholars supported this argument, urging the court to consider, in sentencing Albury, the nature and circumstances of the disclosure, its public value, and the potential impact of the punishment on First Amendment interests. Judge Wilhelmina Wright found the argument unpersuasive, criticizing Albury’s actions as “a fool’s errands” and “a misguided understanding of honor” that harmed national security.
Since the American Revolution, the American public has relied on the publication of secret information by the press in fighting public corruption and keeping the government and public officials accountable. The history of leak cases reflects this very point: until about a decade ago, it was exceedingly rare for a reporter’s source to be treated like a spy and prosecuted under the Espionage Act. Sentences as severe as Albury’s and Winner’s were virtually unheard of.
In the amicus brief filed prior to Albury’s sentencing, the Reporters Committee made these points. Even among the fourteen cases other than Albury’s that have been brought since 2009, most of them resulted in prison sentences significantly less than what Albury faced under the sentencing guidelines. Indeed, high-ranking officials such as David Petraeus and James Cartwright received sentences of probation and a pardon, respectively.
The amicus brief also urged the district court to consider the fact that the sentencing guidelines do not appropriately capture cases like Albury’s — there was only one case involving disclosure of information to the media at the time of its formulation in 1987.
In recent years, we have seen an increased reliance on the Espionage Act to prosecute and hand down progressively harsh sentences to individuals who disclose secret government information to the media. This is an alarming trend as it will inevitably chill the flow of information in the public interest and threaten this independent and robust check on our democracy.