If you’re a federal employee who has come across some wrongdoing and wants to go public, trust us: You’re going to need a lawyer. And if you’re anything like some of the high-profile whistleblowers who have preceded you, that lawyer will likely be Mark Zaid. The DC attorney is perhaps best known for representing the CIA employee whose disclosures set off the investigation leading to Donald Trump’s first impeachment. But over his 20-plus-year career, Zaid has also helped prominent journalists sue the government for hidden information, won a $2.7-billion settlement from Libya for the Lockerbie bombing, and cofounded the legal organization Whistleblower Aid. He’s currently representing many of the federal officials who have been afflicted with the mysterious symptoms known as Havana syndrome.
But Zaid isn’t just an attorney—he’s also an in-demand TV commentator and legal thinker who spends a lot of time digging into sticky issues involving the tug of war between free speech and national security. We talked to him about state surveillance, the dangers of another Trump term, and receiving death threats.
There has been a lot of news lately about how the Trump Justice Department seized journalists’ phone records. What do you make of that?
It’s not a legal issue—it’s a policy issue. Under the law, [the media is] susceptible to being investigated and prosecuted. As far as I’m concerned, it’s black-and-white: The Espionage Act makes it very clear there’s no First Amendment exception. None of this has been that the journalist is under investigation—it’s just been going after sources. To be perfectly honest, I don’t have a problem with the government going after journalists, especially for sources.
So how concerned should members of the media be?
My view is all [journalists] should be concerned and should stop being so lazy and relying on email and [other electronic communication]. All of that is susceptible to being subpoenaed. It’s time to bring back the parking garage and Deep Throat, if you really want to protect your sources.
When I teach this subject, I always say the Obama administration was not the most aggressive administration that ever existed, and [although] they prosecuted more leakers than any other administration, that wasn’t because they had an appetite for it. It was because they had the evidence for it. With today’s technology, it’s a lot easier to catch leakers. The computer systems the government workers use track everything they do, so it’s not difficult to isolate who was responsible for the leak.
Is part of that shift from in-person meetings due to journalists not being aware of this electronic surveillance?
People have gotten complacent. This applies to all of us. But I’m not expecting the government to come after my stuff, including in a leak investigation, because there would still be attorney/client privilege. [Journalists] don’t have a privilege.
Senator Ron Wyden is now proposing legislation that would establish a similar privilege for journalists. Is that a good idea?
A whole host of states have a journalist shield law, and I think the primary objection [to a federal shield law] from most in the US government has to do with classified information. I’d be interested to know how often the federal government has gone after journalists when it’s not classified, because usually the federal government does not pay attention to journalists the way states might.
Most times journalists run into problems, it’s criminal cases [where] a journalist is in touch with a defendant or suspect and a local authority oversteps their bounds to go after the journalist. I don’t think you see that at the federal level, other than when it’s classified national security. So I wonder whether this is necessary. I’ve learned in the years since I’ve been [in DC] that if it ain’t broke, don’t fix it, and if it’s only slightly broken and still works, you may not want to touch it, because you could break it more. If [Congress] modifies [this], they will f— it up.
How many cases are we actually talking about where the government has overstepped its bounds with respect to journalists? You [can count them] on one hand in the past 40 years. If you pick up the New York Times or Washington Post, there’s probably something considered classified in those every single day, and does the Justice Department open a case?
But if we learned anything from the Trump administration, it’s that past norms don’t necessarily hold. If Trump or another Trump type wins in 2024, what’s to stop them from increasing these investigations?
I mean, that is a risk. From what I’ve seen over the years, it’s [spurred by] aggressive career prosecutors who want to use what’s available under the law. Oftentimes, what stops them is the policy people saying, “We don’t want to go down that route.” The problem is when you have aggressive career prosecutors and government policy people who are like, “Oh, yeah, go for it.”
“It’s time to bring back the parking garage and deep throat, if you really want to protect sources.”
The perfect storm, essentially.
Exactly. But that term, perfect storm, indicates one-in-a-million chances. I’m just concerned that in order to avoid the perfect storm, we could do damage to so many other things. The US government doesn’t deal well with these leak cases, because they do not know how to react with laser precision and they turn into a sledgehammer instead.
Post–[Edward] Snowden, rather than deal with very specific security protocols that would avoid future Snowdens, they strengthened their insider-threat program. One of [the new threat indicators] was if you see someone unusually despondent at work, you might want to report them. What if someone had a close family member pass away but was very private in their personal life at work? I had so many clients in that aftermath who were being reported as security violations, and then their career was derailed for a year to three years.
Especially now, because everything is so partisan and I don’t trust any of these people on the Hill, I swing back to “What do we need? Are we really that concerned?” I think, right now, things are probably going to be safe.
Yet there’s still that scenario where a Trump type comes to power.
Look, it’s difficult. I am hopeful we don’t have another person like Trump. I guess right now I’m just living within the Biden administration and I’m not concerned. I honestly wish the Biden administration had not been so categorical in its assertion [to end subpoenas of journalists], because there’s got to be a gray area on some of this. I mean, what if the journalist was connected to a foreign intelligence service, knowingly or unknowingly? It’s one thing if it’s a leak investigation and it’s an accountability issue, but what if the journalist was involved in sex trafficking or child pornography?
I was interested to see that you disagreed with Merrick Garland’s decision to end the investigation into whether John Bolton’s book illegally disclosed classified information. Many people viewed that investigation as a political move by the Trump administration to try to slow or stop its publication.
I handle these pre-pub cases all the time, and every time someone ignores the pre-pub process, the system becomes worse. Part of the civil suit against Bolton was that he had disclosed his manuscript—prior to its approval [for publication]—to his lawyer, his literary agent, and his publisher. That’s a clear breach of contract, because the pre-pub requirement is that prior to dissemination to a third party, you need to give the government the ability to determine if this is classified information.
I think people in the Trump White House politicized what Bolton did; I have no trouble believing that. But Bolton did exactly what Snowden did: He decided on his own whether or not this is a legitimate issue. [Garland] throwing this case out shows that senior government officials get treated better than lower-level federal employees. [Former CIA director David] Petraeus leaked classified information to his mistress and he gets away with a misdemeanor. Meanwhile, I’ve got clients who served years in prison for leaking information that nobody really saw or created any damage.
A Trump supporter was recently sentenced to a year in jail for emailing you a death threat. You wrote that you’d “never received such a vile threat,” which I found pretty stunning given the nature of your work. What is it about our society that things are like this?
It’s a good question. Social media has encouraged people to say and do these abusive things without thinking about the consequences. I’ve received abusive emails and voicemails from both sides of the ideological spectrum. The left doesn’t threaten with death. They call you names, they’re obnoxious, but generally speaking, the really vile, harmful threats come from these folks on the alt-right.
This guy got prosecuted because of how he acted to the FBI, more than how he acted to me. The FBI investigated at least half a dozen death threats to me and went to people’s homes. Most people were smart and probably peed their pants and went, “Oh, my God, what is the FBI doing here? I’m never going to do it again!” This guy, he threw a table at them.
One of the FBI agents accidentally brushed against this guy when he went to sit down, and the guy flipped the table over at him and started yelling, “This agent assaulted me! Arrest him!”
I’m happy to say I haven’t received any death threats, but I’ve gotten my fair share of abusive emails. It’s baffling to me that people send these awful messages and seem surprised when they get read by an actual person.
I got one that said something to the effect of: “I’ve seen you twice eating lunch downtown, and the next time I may just come over to you and do something.” I work from home in Rockville; I hadn’t been downtown for weeks. So I’m like, “You’re full of shit, dude.” But my office address says I’m downtown, and if I had been downtown every day, I would have been like, “Oh, my God, is this real? Does this person really see me?”
Ever since [the shooting at] Comet Ping Pong, you’ve got to take these threats seriously. You just can’t take any chances. And this isn’t the end of it. Trump opened up this Pandora’s box that you and I are going to have to deal with for many years. Because 25 percent of these people in the United States are nuts.
This article appears in the August 2021 issue of Washingtonian.