With Donald Trump set to return to the White House next year, there is much speculation about how his second administration will affect press freedom. Simply put, we don’t know it, but the forecaster is benefiting from an important data set: his first term.
And if this record is any indication, national security “leaks” to the press may become an area of tension between journalists and the new leadership at the Justice Department. A chilling effect on sources that provide newsworthy information in the public interest would leave the American public less informed and the U.S. government less accountable.
Things have been quiet on this front for the past four years, but the first Trump administration inherited and expanded the Obama administration’s aggressive pursuit of sources who disclosed government secrets to the press.
And President-elect Trump has frequently decried national security breaches and called for aggressive investigations and prosecutions.
It would be foolish for the press to downplay the possibility of a repeat of his first term, and perhaps an escalation.
There are several federal laws that make the disclosure of national security secrets a crime. The most famous is the Espionage Act of 1917. This is a World War I-era law that was initially used against domestic opponents of the war, but also applies to the act of transmitting, conveying, or transmitting “information relating to national defense,” a broader term. . , to those who are not entitled to receive it.
In other words, if someone were to anonymously slip a manila envelope under a reporter’s door containing government secrets, even if it was a warrantless home wiretap by the George W. Bush administration, the public clearly wanted to know. The Justice Department has consistently asserted its authority to investigate and prosecute sources and journalists under the Espionage Act, no matter how secret they may be. There is no “public interest” defense.
Historically, it was not used that way. For nearly 90 years, the Espionage Act has applied to actual spies, not journalistic sources. There are some exceptions, most notably the Pentagon dossier case in which the government unsuccessfully prosecuted Daniel Ellsberg and Anthony Russo, but the number of source cases is in the single digits. And while there were investigations involving journalists, no reporters or media outlets were ultimately charged under the Espionage Act during that period.
The reason is simple. Taking leakers and journalists to court when their reporting is in the public interest is one of the few exceptions; as a federal appeals court judge put it in a 1980s case over the leaking of confidential photos, it is a “political It will probably go up in flames.
However, the Bush and Obama administrations introduced changes in practice.
Under President George W. Bush, the Justice Department filed its first Espionage Act case against an individual outside the government who, other than Mr. Russo, was not sworn to protect government secrets. The Bush administration also featured the Valerie Plame case, which began as a leak investigation. In this case, Judith Miller of the New York Times spent 85 days in prison for refusing to identify confidential sources in her reporting on the run-up to the Iraq war. . And the Bush Justice Department issued a subpoena in 2008 to force James Risen of the New York Times to identify his sources in another leak case pursued by the Obama administration until 2015.
After that, the Obama administration began to prosecute journalist sources in earnest under the Espionage Act. Depending on how you count, his administration has filed 10 such lawsuits. That’s more than all other presidents combined.
President Trump’s first term continued that trend. In addition to the Julian Assange case, the Justice Department has filed eight lawsuits against journalist sources, including two under the Bank Secrecy Act. Assange’s case is complex, but he was also prosecuted on the basis of the novel and dangerous legal theory that disclosing secrets is a crime.
These incidents may involve the government secretly requesting a reporter’s notes. Records of phone calls, emails, and texts. and correspondence with sources. This kind of snooping can reveal not only the investigation of the issue, but also the source of the journalist’s information, giving the government visibility into other stories the news station is investigating, including stories about the government. I can do that. Before being jailed, Mr Miller said: “If journalists cannot be trusted with confidentiality, they cannot function and there can be no freedom of the press.”
The Justice Department during President Trump’s first term accelerated the Obama-era approach. In addition to seizing years of records from reporter Ali Watkins’ phone and email provider, Customs and Border Protection agents threatened to expose her personal information if she did not reveal the source of the information. Watkins was a reporter for Politico at the time of the interrogation and was at the New York Times when she learned of the seizure of records.
Then, in the early days of the Biden administration, the Justice Department granted three separate requests for phone and email records from eight reporters from CNN, the New York Times, and the Washington Post. Understood. Leak investigation. It did this without prior notice to these media outlets to give them an opportunity to negotiate and contest the demands. CNN and the New York Times’ requests also came with a gag order that prevented the news outlets’ lawyers from even informing reporters that they had been targeted.
The history of breach investigations under Presidents Bush, Obama, and Trump shows that threats to the free flow of information are bipartisan and cross administrations. Biden’s presidency was a notable exception, but a repeat may be coming.
Gabe Rotman is policy director for the Reporters Committee for a Free Press.
