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Is it a felony to leak a financial disclosure form, as Anthony Scaramucci said?
Anthony Scaramucci, the new White House communications director, called for a full-blown federal investigation of leaks in a tweet.
"In light of the leak of my financial disclosure info which is a felony," he wrote on Twitter, "I will be contacting @FBI and the @TheJusticeDept #swamp @Reince45"
He later deleted the tweet. The White House did not provide information for this fact-check.
First, it’s important to note that the financial disclosure was a public record, not secret information.
Second, Scaramucci’s financial disclosure form wasn’t leaked. It was available upon request from Scaramucci’s former employer, the Export-Import Bank, as of July 23, 2017, or 30 days after it was filed.
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This is how Lorraine Woellert, the Politico reporter who broke the story, got it.
"My source for @Scaramucci financials was Ex-Im Bank. Period."
The Export-Import Bank confirmed Woellert put in a request to their ethics office and said that any reporter was welcome to put in the same request.
When the New York Times asked Scaramucci why he thought the report had been leaked, he said, "They aren’t in process yet," but didn’t elaborate. He did not respond when told the form could be released as of July 23.
Scaramucci’s claim the leak was a felony would be off even if, as he seemed to believe, the 30-day period had not yet ended.
Law experts told us that criminal statutes apply only to those who leak nonpublic national security information, like classified information or the identity of undercover agents, for theft of government property. The government has pursued such cases multiple times. However, Scaramucci’s financial disclosure forms were not of relevance to national security.
There are also laws on computer privacy that aren’t limited to classified information. According to James Hoopes, Murata Professor of Business Ethics at Babson College, it may have been a felony if the financial disclosure form was obtained by hacking a computer, which it wasn’t.
There are also statutes that criminalize certain disclosures, such as the disclosure of tax returns, enacted after President Richard Nixon used these to go after his political enemies. But there’s no such statute for financial disclosure forms.
Disclosures of personal information could potentially form the basis of a civil suit for violation of the Privacy Act, according to Kathleen Clark, a legal ethics expert and law professor at Washington University.
The Privacy Act says that agencies can’t disclose records that are contained in a system of records without the consent of the individual. But even that wouldn’t constitute a felony, and the time the record was to be contained had expired.
Scaramucci acknowledged the weakness of his original legal claim to Chris Cuomo on CNN, but he stayed on message with regards to leaks.
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"I understand the law. I know that there was a public disclosure mechanism in my financial forms," Scaramucci said. "What I'm upset about is the process and the junk pool, the dirty pool, Chris, in terms of the way this stuff is being done, and the leaking won't stop."
Some reporters posited that Scaramucci’s inclusion of White House Chief of Staff Reince Priebus’ handle in the tweet was an accusation of having produced the leak. After deleting the original tweet, Scaramucci wrote another tweet to correct the record and again tagged Priebus.
"Wrong! Tweet was public notice to leakers that all Sr Adm officials are helping to end illegal leaks. @Reince45".
Justice Department spokeswoman Sarah Isgur Flores responded to Scaramucci’s original tweeted request that the Justice Department launch a federal investigation into leaks.
‘We have seen an astonishing increase in the number of leaks of classified national security information in recent months," Isgur Flores said in a press release. "We agree with Anthony that these staggering number of leaks are undermining the ability of our government to function and to protect this country. Like the Attorney General has said, ‘whenever a case can be made, we will seek to put some people in jail,’ and we will aggressively pursue leak cases wherever they may lead."
The FBI did not respond to our request for comment on Scaramucci’s call to action, but directed our question of whether a leak of financial disclosure forms constituted a felony to the Justice Department. The Justice Department did not respond.
Scaramucci called the leak of his financial disclosure form a felony in a tweet that he later deleted.
He was incorrect in calling the publishing of his form a leak, as it was a public document provided to the Politico reporter by the Export-Import Bank after the required 30 days of his filing.
Even if it had been provided earlier, though, experts told us the leak of financial disclosure information wouldn’t be considered a felony, unless someone had hacked the system to obtain it.
We rate this statement False.
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Our Sources
Anthony Scaramucci, Tweet, July 26, 2017
New York Times, "Scaramucci Hints Priebus Was Behind a Leak. But There Was No Leak," July 27, 2017
New York Times, "Scaramucci Calls for Inquiry After ‘Leak’ of Financial Form," July 27, 2017
Politico, "Scaramucci claims 'felony' over report of public disclosures," July 27, 2017
Politico, "Scaramucci still stands to profit from SkyBridge from the White House," July 26, 2017
CNN, Anthony Scaramucci's full interview on 'New Day', July 27, 2017
Email interview with Steven Cheung, White House Assistant Communications Director, July 27, 2017
Email interview with James Hoopes, Murata Professor of Ethics in Business at Babson College, July 27, 2017
Email interview with Kathleen Clark, an expert on legal ethics and a law professor at Washington University Law, July 27, 2017
Email interview with Hana Callaghan, director of government ethics at Santa Clara University, July 27, 2017
Email interview with Lisa Kern Griffin, Carroll-Simon Professor of Law at Duke University, July 27, 2017
Email interview with Jillian Stickels, FBI spokesperson, July 27, 2017
Office of Government Ethics, Public Financial Disclosure Report, June 23, 2017
FDIC.gov, Overview of the Privacy Act of 1976
Anthony Scaramucci, Tweet, July 27, 2017
Lorraine Woellert, Tweet, July 27, 2017
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