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Subject:  Re: Leak Prosecutions: The Gathering Storm Date:  2/28/2006  3:33 PM
Author:  albaby1 Number:  903935 of 2381068

And I think that Congress wouldn't have the authority to do that -- to criminalize the exposure of unconstitutional conduct.

I imagine that the Court would construe the laws so as to not criminalize the "exposure" of unconstitutional conduct, simply by reading into them an exception that would allow someone to disclose that information to the Courts. Alternatively, they would view the fact that there are numerous individuals outside of the Executive who are authorized to receive classified information to whom such constitutional violations could be "exposed."

In other words, the leaker had options other than going to the press, and therefore has no shield against criminal prosecution.

The Zenger case is an interesting one, but it's more an instance of jury nullification. That might happen in the case of a leak prosecution as well, BTW - the jury might refuse to convict if they genuinely thought the leaker's motives were pure - but that's a different legal principle.

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