A threat from the Trump administration, apparently aimed at journalists as part of a larger campaign to prevent widespread government “leaks” that have enraged the president, is the wrong message delivered by the wrong messenger.
Attorney General Jeff Sessions, only a few days removed from a challenge from President Trump (issued via Twitter of course) to be tougher on tracking down leakers in the White House and elsewhere, made a statement today announcing ramped-up leak investigations and policy reviews – and included a warning to journalists that they might be subpoenaed in these processes.
Sessions said the Department of Justice would be reviewing its own guidelines on such subpoenas as part of its leak investigations, and said that a new special unit was being created within the FBI to conduct leak investigations generally. According to news reports, Deputy Attorney General Rod Rosenstein would not say at a briefing after the press conference if the DOJ intends to go even further by prosecuting journalists for reporting on classified information.
Decisions to subpoena journalists or to prosecute reporters or news outlets for publishing classified information given to them would be misplaced at the very least, and at the worst will threaten the core American value of an independent news media serving as a watchdog on government.
The threat of criminal prosecution did not deter the two largest disclosures of classified information in the nation’s history, by government contractor Edward Snowden and disaffected U.S. soldier Chelsea Manning. Both said they were motivated by a need to inform the American public of improper or illegal government actions.
And while journalists reported extensively on both, the main conduit for the release of the information was the internet, specifically the anti-government site “Wikileaks” – which thus far has avoided prosecution by remaining “offshore” or, in the case of its founder Julian Assange, hiding for years in Ecuador’s embassy in London out of reach of U.S. officials.
The DOJ guidelines were most recently revised in 2015, during the Obama administration, to focus on tracking down those who provided the leaked information, rather than the journalists who received and published it. The revisions followed widespread criticism of Obama administration efforts that included secretly attempting to obtain the telephone records of journalists and the seizure of two months of such records of reporters and editors for The Associated Press.
President Obama prosecuted more leakers – eight – during his two terms in office than were prosecuted by all previous administrations combined. At one point, a reporter for Fox News was labeled a “co-conspirator” in a subpoena, but was not included in the later, successful prosecution of a government employee who leaked information about a North Korean missile test.
Session’s session took place a few hours after The Washington Post’s publication of two transcripts of Trump’s conversations with the leaders of Mexico and Australia – neither showing Trump in a positive light – and came after a series of leaks from the Trump administration on topics ranging from Russian intervention in the 2016 presidential race to dinner parties with the President.
Journalists in the United States have relied on a 2001 U.S. Supreme Court decision in “Bartnicki v. Vopper” to protect them from prosecution for publishing secret or classified information in the public interest. In that case, the court held that a journalist could not be prosecuted for broadcasting a private cell phone conversation involving a labor official talking about a teachers strike because the broadcaster was not involved in the illegal recording of the conversation, and it was clearly on a matter involving the public interest.
The guidance from that case boils down to a doctrine nicknamed “over the transom,” which requires that the journalist receiving the information not have been involved in the decision or action to obtain or the material.
The 1917 Espionage Act – intended to deter unauthorized disclosures during WWI – does criminalize the mere possession of classified information without permission. But as government officials have learned in their attempts to prosecute non-journalists, the Act also requires that the government show that the leaker intended to harm the United States or aid a foreign country.
Given that materials journalists might publish are virtually assured to involve matters of public interest, such a defense likely would be raised at the outset of any legal action brought by the DOJ.
What’s more, while Sessions cited national security and the danger to American operatives as the core motivations behind his renewed leaks campaign, he cited no incidents involving either. Courts are much less likely to override nearly a century of valuing the press’ “watchdog” role on the behalf of the public in favor of prosecution that is merely based on political damage to a particular administration.
The Trump Administration, and indeed any other administration, certainly has the right to attempt to stop unauthorized leaks from inside their own house, and prosecute those who take an oath to do otherwise.
But this nation’s founders provided for an independent press to hold government accountable – and very often that can only be accomplished by providing the public with information the government wants to keep secret, often to hide errors, avoid political damage or – as in disclosure in recent years of massive surveillance of Americans’ phone and email traffic – to operate potentially unconstitutional programs.
And what of the courageous “whistleblowers” throughout our nation’s history who violated secrecy requirements to reveal waste, fraud or corruption at all levels of government? Lives have been saved, not threatened, by those “leaks.”
If Justice officials can someday prove that someone claiming the cloak of journalism and public service in reality actually set out to steal government secrets with the intent to cause harm to the U.S. – well, that person or group cannot be called a journalist – they are an attack dog, not a watchdog.
Until then, Mr. Attorney General, focus on your own doghouse.
Gene Policinski is chief operating officer of the Newseum Institute and the Institute’s First Amendment Center. He also was a contributing author to the 2014 book “Whistleblowers, Leaks and the Media,” published by the American Bar Association.