Another 19th Century media leak case

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Longtime readers of this newsletter know that we at the Reporters Committee for Freedom of the Press have tried to comprehensively survey every federal media “leak” case going back to the founding. 

Our methodology is to include every instance involving Congress, the courts, or executive branch agencies where officials have either demanded journalists’ testimony or records to identify the source of an unauthorized disclosure or where they have brought criminal charges based on those disclosures. The only thing we avoid are purely internal administrative leak inquiries (just because there are a lot of them and they are difficult to identify).

Last year, while we were digging around in the Senate Church Committee report, we found a bunch that we hadn’t listed in our master chart of cases (which, please note, needs to be updated). And, while reading a new book on the history of police-press relations, I found one more this week from the early 19th century. (The book, written by Scott Memmel, is “Pressing the Police and Policing the Press: The History and Law of the Police-Press Relationship”; it’s quite the resource!)

This one is particularly interesting in that it’s a congressional leak hunt from 1812. Back in the 19th century, these weren’t infrequent because the Senate used to debate treaties and nominations in secret. That created an incentive for the losing side to leak like a sieve right after the vote. But you don’t see these cases begin in earnest until later in the century, with the first one on our list in 1844, in connection with Sen. Ben Tappan sending information regarding the contemplated annexation of Texas to the New York Evening Post.

This new 1812 case is actually one of the first exercises of Congress’s inherent contempt authority in connection with an unauthorized media disclosure (in contrast to the much more commonly used statutory authority, which requires a referral to the U.S. Justice Department). It’s listed as one of the first headnotes in “Hinds’ Precedents,” which collects the very early rulings of the House chair.

And the facts are not boring. Nathaniel Rounsavell, the son of a tavern owner and jailer in Alexandria, Virginia, founded the Alexandria Herald in 1811, in partnership with John Corse. In April 1812, another paper, Georgetown’s the Spirit of Seventy-Six, published accounts of supposedly “secret” discussions in a House special foreign relations committee on the advisability of war with Britain, which would break out four months later in June. (The Spirit of Seventy-Six was opposed to President Madison and supported negotiations with Britain to resolve the ongoing trade conflicts that ultimately led to war.)

According to Hinds’ Precedents, Rounsavell had given the information to the Spirit of Seventy-Six. On April 3, 1812, the House appointed a committee to determine whether there had been a violation of House secrecy and called Rounsavell to compel his testimony on which member of the House had given him the information. He was arrested by the sergeant-at-arms and refused to identify his source. He was then held in custody until further order of the House. 

Before he could again be brought before the “bar” of the House to disclose his source, a resolution on April 7 purged him of contempt “by reason of the explanation of a Member.” This CRS report also states that Rounsavell’s contempt order was lifted before he had to identify his source. The Library of Virginia, however, suggests that he did, in fact, testify that his source was Rep. John Randolph of Roanoke.

In any event, this is yet another entry for our ever-expanding leak chart, and a particularly important one for the legal history of Congress’s inherent contempt authority.

The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with RCFP Staff Attorney Grayson Clary and Technology and Press Freedom Project Fellow Emily Hockett.