On February 8, 2025, the Los Angeles Times reported on a “leaked document” that said large-scale immigration enforcement was coming soon to the City of Angels as part of President Trump’s mass deportation effort. More specifically, that U.S. Immigration and Customs Enforcement (ICE) would lead the operation, zeroing in on those without legal status in the U.S. or who have pending orders of removal, and that FBI & DEA agents were being called in to assist.
The next day, Department of Homeland Security (DHS) Secretary Kristi Noem suggested that the FBI leaked the raid information.
“The FBI is so corrupt. We will work with any and every agency to stop leaks and prosecute these crooked deep state agents to the fullest extent of the law,” she wrote on X, apparently failing to realize that the FBI is the agency that investigates leaks.
A month later, Noem posted on X that DHS had identified the leakers and that they were not from the FBI, but rather her own agency. Moreover, she said she was preparing to refer them to the Justice Department for prosecution, noting that they “face up to 10 years in federal prison.” On CBS’s “Face the Nation” Sunday, Noem elaborated further that there were two leakers and that they “were leaking our enforcement operations that we had planned and were going to conduct in several cities.”
I’ve represented a number of alleged “leakers” and this struck me as odd for many reasons.
As an initial matter, when government, law enforcement, and/or military operations are the subject of an unauthorized disclosure, the government rarely confirms the leak’s authenticity right out of the gate. The first official response is usually that the government can “neither confirm nor deny” that a leak even occurred.
None of this is sound investigatory practice, nor a sign of a healthy, trusting, well-functioning government agency — especially one in charge of our homeland security.
Nor does the government normally verify a leak’s content — especially operational details — of supposedly sensitive information. Even if the information at issue is entirely unclassified, a law enforcement operation (including aborted ones) is still closely held. Additionally, by verifying and describing the leak, Noem essentially rebroadcasted it — this time with a louder megaphone and the imprimatur of the United States.
Noem stating that employees are being polygraphed is yet another irregularity. It begs the question why employees are being subject to polygraph exams,which are notoriously unreliable and inadmissible in court, if DHS has already identified the culprits. To the extent that Noem is revealing details of DHS’s own internal investigation, that’s either sloppy or meant to intimidate the workforce she oversees. It also reveals details of what appears to be an ongoing federal criminal probe. None of this is sound investigatory practice, nor a sign of a healthy, trusting, well-functioning government agency — especially one in charge of our homeland security.
Finally, Noem noted that “leakers are being held accountable and will be criminally prosecuted,” failing to realize that “leaking” is not a crime unless it involves the mishandling of national defense information — something she has never asserted and would look opportunistic after her myriad other public statements. When she says leakers “face up to 10 years in federal prison,” she appears to be alluding the the fraught Espionage Act of 1917 (I have criticized the law here), which has been used primarily to go after whistleblowers from Daniel Ellsberg to Thomas Drake, John Kiriakou, Edward Snowden, Reality Winner, and Daniel Hale.
Notably, however, those Espionage Act cases involved alleged press disclosures of allegedly classified information that allegedly harmed national security. Noem invoked none of those magic buzz words, which the national security regime hardly shies away from levying in leak cases. It is unclear why she plans to use the full force of the entire Executive branch to go pursue and punish a leak that embarrassed the administration, but caused (in her own assessment) no actual, identifiable harm.
Noem’s statements raise more questions than they answer. Perhaps a better line of inquiry might be to find out why employees tasked with protecting our homeland would feel the need to leak about ICE raids in furtherance of Trump’s deportation designs. In her pledge to “continue to do all that we can to keep America safe,” it is perhaps worth examining who Kristi Noem is really trying to protect.
