
With Donald Trump returning to the White House next year, there is a lot of speculation about how his second administration will impact press freedom. The short answer is we don’t know, but forecasters have the advantage of an important data set: his first term.
If this record is any indication, national security “leaks” to the press may be an area of tension between journalists and the new leadership at the Justice Department. If there is a chilling effect on sources providing newsworthy information in the public interest, Americans will be less informed and the U.S. government will be less accountable.
Things had been quiet on this front for the past four years, but the first Trump administration inherited and expanded the Obama administration’s aggressive prosecution of sources who revealed government secrets to the press.
President-elect Trump has done so often denounce National Security leaks and demanded that they be investigated and prosecuted strictly.
It would be foolish for press defenders to rule out the possibility of a repeat of his first term, and perhaps an escalation.
There are several federal laws that could be read to criminalize the public disclosure of national security secrets. Among the most prominent Espionage Act of 1917a World War I-era law that was initially used against domestic opponents of the war but applies to the communication, delivery or transfer of “information relating to national defense,” a broad term, to anyone not entitled to it.
In other words, if someone anonymously slipped a manila envelope under a reporter’s door that contained government secrets — even secrets that the public has a clear interest in knowing, such as warrantless wiretaps by the George W. Bush administration – The Ministry of Justice has He claimed constantly The authority to investigate and prosecute the source and journalist under the Espionage Act. There is no defense of “public interest”.
Historically, it has not been used this way. For nearly 90 years, the Espionage Act has been applied against actual spies, not against journalistic sources. There are a few exceptions – most notably the Pentagon Papers case, in which the government launched a campaign Failed trial v. Daniel Ellsberg and Anthony Russo — but the source cases are in the single digits. Although investigations were conducted into journalists, no reporter or media outlet was ultimately prosecuted under the Espionage Act of that period.
The reason is simple. When reporting is in the public interest, taking a leaker or journalist to court would be a ‘political firestorm’, says federal appeals court judge. Put it down In one of those few exceptions, a case in the 1980s involved the leaking of secret photos.
But the Bush and Obama administrations witnessed a shift in practice.
Under President George W. Bush, the Justice Department passed the first espionage law issue Unlike Rousseau against individuals outside the government, who are not sworn to protect government secrets. The Bush administration also brought up the Valerie Plame case, which began as a leak investigation, in which Judith Miller of The New York Times spent 85 days in prison for refusing to identify a confidential source from her reporting on the run-up to the Iraq War. . The Bush-era Justice Department issued a subpoena in 2008 to force New York Times reporter James Risen to identify his source in another leak case, which the Obama administration pursued until 2015.
Then the Obama administration began filing lawsuits under the Espionage Act against journalist sources in earnest. Depending on how to count, brought his administration 10 such cases. That’s more than all the other presidents combined.
Trump’s first term has followed this trend. The Justice Department has filed eight cases against journalistic sources, including two under bank secrecy laws, in addition to the Julian Assange case. Assange’s case is complex, but he has been charged in part under the law Novel and dangerous The legal theory that publishing secrets is a crime.
These cases can involve secret government requests for reporters’ notes; Phone, email and text records; And correspondence with sources. This kind of snooping can reveal a range of a journalist’s sources beyond just the investigation in question, and can give the government insight into other stories the newsroom is investigating, including government-related stories. As Miller He said when he faces prison time: “If journalists cannot be trusted to keep secrets, journalists cannot do their jobs and there will be no free press.”
The Justice Department during Trump’s first term consolidated Obama-era approaches. In addition Seizure Years of records from phone and email providers by CBP reporter Ali Watkins factor She threatened to reveal private information unless she identified her sources. 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, we did I learned The Justice Department in the final days of the Trump administration authorized subpoenas of phone and email records for eight reporters at CNN, the New York Times and the Washington Post in three separate investigations related to the leak. It did so without notifying those outlets in advance — to give them a chance to negotiate or challenge the demands — and the demands from CNN and the New York Times came with a gag order preventing newsroom lawyers from even alerting reporters that they were being targeted.
The history of leak investigations under Presidents Bush, Obama, and Trump shows that the threat to the free flow of information is bipartisan and extends to administrations. President Biden’s term has been a notable exception, but there may be a repeat.
Gabe Rotman is policy director at the Reporters Committee for Freedom of the Press.