While some pundits try to make it sound as if leaks to the press are new and unique, they’re not. Congress has been a sieve ever since the early days of the country.
For example, in March 1800 the proposed text to the Ross Bill that was still being written was published in its entirety in the Aurora, a paper whose editorial position favored the Democratic-Republican Party led by Thomas Jefferson.
There were those in Congress who wanted the editor, William Deane, to be tried in court and the three senators who leaked the bill, impeached. At the time of the leak, John Adams was the president of the U.S., and Thomas Jefferson was his vice president. Deane’s Philadelphia-based paper was extremely influential and had been publishing editorial after editorial criticizing Adams and the Federalists. Today, we would call much of Aurora’s content “hit pieces” or “fake news.”
The Ross Bill (named after its originator James Ross) would establish a bi-partisan committee to ensure that all ballots were counted and the electoral votes for each state represented the actual popular vote. Back in those days, electoral votes were apportioned by the votes cast for each candidate.
The committee would consist of six senators, three from each party, six representatives, again with three from each party and the chief justice. It would have the power to disqualify electors who did vote in accordance with the wishes of the state’s voters.
Duane published the contents of the bill along with a series of editorials criticizing President Adams and the senators who sponsored the bill. He portrayed the members as being “the committee of the privileged.” President Adams and the Federalists were furious since Duane’s accusations and hypotheses were inaccurate.
Adams ordered his attorney general, Charles Lee, to investigate and try Duane and his editors if a crime was committed. At the very least, they wanted to punish him for “contempt of Congress.”
Part of the debate in Congress was that protection under the 1st Amendment goes away if the information used by the paper was obtained illegally. In 1800, freedom of the press as granted in the U.S. Constitution was a novel and very new concept not found anywhere else in the world.
Very quickly, the Federalists who had control of both houses of Congress proved that three Democratic-Republican senators had given Duane a copy of the bill. In doing so, the senators violated Senate rules, and the law since bills discussed in committee were considered confidential and privileged information. The Federalists began to prepare impeachment charges against the senators and a criminal trial against Duane.
Then the election of 1800 occurred. Adams lost to Jefferson and the Democratic-Republicans gained control of both houses. Jefferson ordered that Duane not be tried and his party members in both houses stopped the impeachment process.
Whether the Ross Bill was appropriate or not, the fact remains that the three senators should never have given a copy of a proposed bill to a member of the press. It was illegal then just as it is illegal today. Unfortunately, even 223 years later, the leaks have not stopped.
1802 portrait of William Deane.