IF there has been a violation of 798, the penalty is more than a fine. Note the mandaotry nature of the recitation in the statute ...
§ 798. Disclosure of classified information
Release date: 2005-08-03(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information-- ...
(3) concerning the communication intelligence activities of the United States or any foreign government ...
(b) As used in subsection (a) of this section--
The term "communication intelligence" means all procedures and methods used in the interception of communications and the obtaining of information from such communications by other than the intended recipients ...(d)
(1) Any person convicted of a violation of this section shall forfeit to the United States irrespective of any provision of State law--
(A) any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation; and
(B) any of the person's property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, such violation.
(2) The court, in imposing sentence on a defendant for a conviction of a violation of this section, shall order that the defendant forfeit to the United States all property described in paragraph (1). ...
The NYT was a named party in the Pentagon Papers case, which touch expressly on the ramifications of a violation of 18 USC 798. You can bet your house that the NYT has concluded that publication of the existence of NSA surveillance is not a breach of the statute (I agree, because the exsistence of keyword searching was disclosed to the public in Senate hearings and in published court cases), and that extending that knowledge to the use of NSA facilities to target certain people in the US is not meant to be covered by the act.
I haven't researched that argument, but would enjoy seeing it litigated. And charging the NYT does not depend on any investigation - the publication "speaks for itself," and has indisputably occurred. The only question is whetrher or not the publication is in violation of the statute.
If it is, the NYT will be giving up printing presses.
I would say off hand that the Commander in Chief would be better versed on the damage it would do than the NYT lawyers. However, in a closed court, the full impact would be revealed and the NYT would be unable to claim they didn't realize what they were doing. They were told.