About the legal issues with Toby’s leak

Okay this may be a dumb question and honestly I may be missing something but wouldn’t Toby be protected by *NYT v. US* given he didn’t receive the information as a government employee (as proven by the prosecutor asking why he had the info given he was not cleared as Communications director)? He presumably receives this information from his brother (and for the sake of this discussion let’s assume this information wasn’t solicited) meaning Toby only gave information to the reporter he’d been told from somebody who was cleared, so he sorta would act as the reporter in this situation with regards to the law. Given publishing this information, as long as it is given freely and not solicited, is legal as shown with the pentagon papers, couldn’t Toby have argued this? I guess this wasn’t a Sorkin episode so they’d never have gone this deep but still.