How US Espionage Act can be used against journalists covering leaks

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Earlier this week, Department of Homeland Security Secretary John Kelly joked about Trump using a saber on the press and U.S. Senator Jim Risch told CNN the press should be questioning the Washington Post about its sources. Then, on May 16, The New York Times reported that President Donald Trump allegedly asked former FBI director James Comey to consider putting journalists in prison for publishing classified information. If the request, which is allegedly detailed in a memo from Comey, is true it represents a serious risk to reporters, according to First Amendment attorneys.

The idea that journalists could be jailed in the U.S. for doing their job is not new. Under the George W. Bush administration, New York Times reporter Judith Miller spent 85 days in jail on contempt of court charges for refusing to testify about the identity of a source. The Obama administration prosecuted more individuals for leaking classified information than any other U.S. president and used the threat of prison in its unsuccessful seven-year battle to compel New York Times reporter James Risen to testify about his sources.

While journalists have been caught up in prosecutions of leakers, a move to directly target and jail them would be a marked change for the government. The likelihood of journalists in the U.S. being imprisoned for publishing classified information has not been legally tested, but lawyers point out that sections of U.S. law could expose them to prosecution.

James Goodale, who represented The New York Times in the landmark libel suit New York Times v. Sullivan and in the Pentagon Papers case, told CPJ that a journalist could be charged under the Espionage Act for conspiring with a source to publish classified information. “I have thought from the moment [Trump] became president that the greatest threat to the free press is that he and his attorney general would try to jail reporters,” Goodale, author of Fighting for the Press: The Inside Story of the Pentagon Papers and Other Battles, said. [EDITOR’S NOTE: Goodale is a senior adviser to CPJ and former chair of its board.]

The Espionage Act of 1917, passed shortly after the U.S. entered World War One, criminalizes the disclosure of classified information. Since 1971 it has been used to charge at least 12 government workers who shared classified information with journalists (eight of those cases occurred under Obama) but it has never been used to directly prosecute a journalist.

“The Espionage Act is 100 years old this year and remains what Supreme Court Justice John Marshall Harlan referred to as a ‘singularly opaque document.’ That’s the problem. It could be used by an administration angry enough at the press to seek to criminalize routine and often societally beneficial revelations of governmental misconduct,” Floyd Abrams, who represented the New York Times in the Pentagon Papers case, said in an email to CPJ. He called Trump’s alleged statement “unsurprising but deeply disturbing.”

The New York Times report on Trump’s alleged statement did not include how Comey responded. In March however, a House Intelligence Committee Hearing questioned Comey on his views of prosecuting journalists for publishing classified leaks.

“That’s a harder question, as to whether a reporter incurs criminal liability by publishing classified information, and one probably beyond my ken,” Comey said in response to the question by Rep. Trey Gowdy. “I’m not aware of any [exception protecting reporters] carved out in the statute, but I don’t think a reporter has been prosecuted in my lifetime.”

The idea that journalists could be charged alongside leakers has some precedent. In 2010, the FBI seized Fox News reporter James Rosen’s email records in a 2010 Espionage Act case against a state department employee accused of leaking information about North Korea. The reporter was named as a co-conspirator in the FBI’s affidavit in support of the court order, but the Justice Department never formally indicted him, according to reports. Former Attorney General Eric Holder later issued guidelines that make it harder, though not impossible, for the Department of Justice to subpoena journalists’ records.

Any prosecution would have to go through the Justice Department, but Attorney General Jeff Sessions has not taken a vocal stand in defense of press freedom. During his Senate Judiciary hearing, Sessions said that he was unsure if he would commit to following the Justice Department guidelines for subpoenaing reporters. Last month he told reporters that arresting Julian Assange is “a priority.” When CNN anchor Kate Bolduan asked Sessions whether people should be concerned that this would open the door for prosecutions against CNN and The New York Times, Sessions responded, “that’s speculative and I’m not able to comment.”

“The president cannot jail journalists but the Attorney General is in a position to jail journalists, and I think we know a bit the general direction from which he’s coming because he said his priority is to prosecute WikiLeaks,” said Goodale, who added that any prosecution of WikiLeaks would create a dangerous precedent for publishers that report on classified documents, and would make it easier to prosecute reporters in the future.

“The greatest danger the press has is a successful prosecution of WikiLeaks in which the attorney general is able to prove that there is a conspiracy between WikiLeaks and its sources…I don’t get much pleasure defending [Assange] but functionally what he does is get information published,” Goodale said.

Checks and balances are in place that should make it harder for the government to prosecute journalists. The Reporters Committee for Freedom of the Press, an organization dedicated to providing legal assistance to journalists, said in a statement this week, “No president gets to jail journalists. Reporters are protected by judges and juries, by a congress that relies on them to stay informed, and by a Justice Department that for decades has honored the role of a free press by spurning prosecutions of journalists for publishing leaks of classified information.”

The First Amendment attorneys with whom CPJ spoke said they are cautiously optimistic that even if a journalist were prosecuted and convicted, a higher court could overturn the ruling. “There is little case law on the subject precisely because no president has sought to use it in the manner adverted to by President Trump. The arguments against reading the statute in the fashion referred to by the president are strong and I think would likely prevail,” said Abrams.

Both attorneys cautioned however, that a victory for press freedom is far from certain.

“The judges may deep-six the theory [that reporters can be prosecuted under the Espionage Act], and I hope they would on the basis of the First Amendment, but the risk is that the prosecution goes forward and you have to wait to be saved at the last minute by the Supreme Court. Or maybe you won’t be,” Goodale said.