Does DOJ Plan to Get Henry Kyle Frese’s Cooperation to Prosecute Journalists?

Henry Kyle Frese, a DIA analyst charged with leaking classified information about China to two NBC journalists in October, pled guilty today. The guidelines laid out in his plea put him well above the 10 year maximum sentence he faces, meaning he may be the rare defendant facing the full prison term allowable. More interesting, his plea includes the possibility of a downward departure for cooperation (though it explicitly says he may get that even if no other charges are brought).

That’s interesting because the bulk of the details laid out in his Statement of Facts describes what he leaked to the two journalists (remember: in investigating this case, DOJ obtained a Title III warrant to eavesdrop on his calls with the journalists). It includes details about Frese accessing information — almost certainly the information relating to China — that was unrelated to his job as a counterterrorism analyst.

In relation to one of the twelve times the defendant orally transmitted TOP SECRET NDI to Journalist 1, in or about mid-April to early May 2018, the defendant accessed an intelligence report unrelated to his job duties on multiple occasions, which contained NDI classified at the TOP SECRET//SCI level (“Intelligence Report 1”).


On at least 30 separate occasions in 2018, the defendant conducted searches on classified government systems for information regarding the classified topics he discussed with Joumalists 1 and 2.

The only other person mentioned in the Statement of Facts was an employee of an overseas counterterrorism consulting group.

Between early 2018 and October 2019, the defendant communicated with an employee of an overseas CT consulting group (“Consultant 1”) via social media. On at least two occasions, the defendant transmitted classified NDI related to CT topics to Consultant 1, using a social media site’s direct messaging feature

Consultant 1 was not authorized to receive classified NDI, and at all times during his communications with Consultant 1, the defendant knew that he was not authorized to transmit classified NDI to Consultant 1.

This, then, appears to be the scenario that would also set a precedent before Julian Assange is brought to the US for trial: that journalists asking someone with clearance for information get treated like spies.

6 replies
  1. James says:

    The very last paragraph seems hyperbolic to me.

    In the statement of facts, it notes specifically the journalists in question solicited specific classified information from Mr. Frese (part 19 of the document).

    Disseminating classified information is a crime. Receiving it unknowingly is not a crime.

    The correct response for a person holding a clearance (for which I got endless training in the Navy) who solicits classified information is to report that person, as solicitation of a crime is also a crime.

    The press is protected from publishing information it received in good faith (some just gave it to them). Asking someone to break the law is not good faith.

    In effect, there is no difference between soliciting someone to break the law regarding safeguarding classified information, and just breaking into an office and stealing it yourself to publish (aside from also drawing a breaking-and-entering charge).

    Solicitation to commit any crime is also a crime. The argument you seem to be making is that a journalist is exempt from the crime of criminal solicitation that everyone else is subject. The Supreme Court has never found that to be the case.

    • PeterS says:

      No, para 19 does not quite say that. It is entirely consistent with the journalists simply asking questions about the information they had already received (not solicited).

    • Skilly says:

      I am going to have to agree with PeterS on this one. After reading the linked paragraph, there is complete vagueness, (in a way that only lawyers can do) as to whether the requests are “soliciting” protected information or merely requesting background, More importantly, there is no suggestion that the journalists knew the information was sought was protected.

  2. Mulder says:

    Jesus Christ. Spies like us.

    From the Statement of Facts:

    10. From in or about January 2018 to in or about November 2018, the defendant and Journalist 1 lived together at the same residential address.
    11. Throughout 2018 and 2019, the defendant and Journalist 1 “followed”each other on Twitter, meaning they could see each other’s Tweets. On at least two occasions, the defendant re-Tweeted Journalist I’s Tweets announcing the publications of articles containing NDI classified at the TOP SECRET level.
    12. In or about April of 2018, Journalist 1 introduced the defendant to a second journalist (Journalist 2). Subsequently, the defendant began texting and speaking with Journalist 2 by telephone

    • TomA says:

      Is this a variation of the honey trap that ensnared James Wolfe? And is this becoming standard practice for female journalists to obtain stories from government personnel in sensitive job classifications? What Snowden did was honorable, but if this technique is truly happening; that’s beyond the pale.

  3. Salt of the Earth says:

    Frese did the same thing Wolfe did, leaking classified information to reporters. However, he ended up with a guilty plea of lying to the FBI. What’s the difference? One of them works with Senator Mark Warner.

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