US Attorney General Jeff Sessions, pictured at a meeting in January 2018, has indicated he intends to pursue leak investigations. (AFP/Saul Loeb)

The president's phantom threats

By Joel Simon/CPJ Executive Director and Alexandra Ellerbeck/CPJ North America Program Coordinator on February 15, 2018 4:01 PM ET

During his tumultuous campaign, Donald Trump declared war on the press, pledging to "open up our libel laws" and impose fines on critical journalists if elected. Within a month of taking office, he vowed to go after leakers, comparing them to Nazis, and urged then-FBI director James Comey to jail reporters who published classified information. In response, money began pouring into legal defense funds set up to protect the press from the looming legal onslaught and defend the First Amendment. First Look Media, the news organization started by eBay founder Pierre Omidyar, put up $2 million and promised more; Jeff Bezos, owner of Amazon and The Washington Post, donated another $1 million to the Reporters Committee for Freedom of the Press. The Democracy Fund (also backed by Omidyar) threw in an additional $800,000 for legal support.

In his first year in office, Trump has attacked the press relentlessly, describing critical media outlets as the enemy of the American people, fake, and failing. He singled out individual journalists by name. But the legal assault has not come. The US Press Freedom Tracker, a project of 30 organizations (including CJR) that documents press freedom violations in the United States, has logged 34 arrests and 44 physical attacks on journalists in the last year as of mid-January--but only one leak prosecution.

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So is Trump all bark and no bite? Should the legal defense funds be put to other uses? Not so fast, cautions Steven Aftergood, the director of the Federation of American Scientists' Project on Government Secrecy. "We're still in year one of the Trump administration and it does take time to build a case, identify a suspect, and make a decision to prosecute," Aftergood pointed out.

"I think we should all be concerned and worried," added Lynn Oberlander, the general counsel for Gizmodo Media Group and board chair of the Media Law Resources Center.

The clearest evidence that leak prosecutions might be coming is the public statements from Attorney General Jeff Sessions. "We have 27 investigations open today," Sessions said in a House Oversight Committee hearing last fall. "We intend to get to the bottom of these leaks."

Sessions noted that in the last few years of the Obama administration--which was criticized for its aggressive posture toward leakers--the Justice Department averaged just three investigations per year. Sessions promised to do better, which has pleased Trump. "After many years of LEAKS going on in Washington, it is great to see the A.G. taking action! For National Security, the tougher the better!" the president tweeted over the summer.

Naturally, all governments want to control leaks and reporters want to receive them, but it wasn't until the Nixon era that the government indicted journalistic sources under the World War I-era Espionage Act. Around the same time, subpoenas of reporters picked up in earnest and began to be considered a true danger to press freedom.

A tenuous equilibrium came in the form of a 1972 Supreme Court case that the press actually lost. In a 5-4 decision in Branzburg v. Hayes, the court held that three reporters, including New York Times reporter Earl Caldwell (whose case involved his reporting on the Black Panthers), could be ordered to testify in court. In a concurring opinion, Justice Lewis Powell suggested that the First Amendment required some reasonable limits on the ability of prosecutors to subpoena journalists. James Goodale, the former Times general counsel (and CPJ senior advisor and former board member), latched on to Powell's stance and used it to develop a legal standard, upheld in lower court rulings, that limited the circumstances in which prosecutors could issue subpoenas to cases in which their testimony was central to a determination of guilt and innocence and the information could not be obtained elsewhere.

The standard held until the Bush administration, when the DC Circuit Court upheld a subpoena against New York Times reporter Judith Miller. Later, under Obama, the 4th Circuit Court of Appeals also upheld a subpoena against New York Times reporter James Risen, dismissing the argument that Powell's concurrence represented a qualified reporter's privilege.

At the same time that the new legal environment opened the door to subpoenaing reporters, the intelligence community, increasingly concerned by large-scale leaks and data dumps, began pushing for more aggressive prosecutions. The creation of the National Security Division in the Justice Department under the Bush administration added dedicated resources to this effort. "The main factor in the dramatic increase in leak prosecutions was technology," noted Times investigative reporter Scott Shane. "In almost every leak case, an electronic trail led from the source to the reporter that the FBI could file."

This new environment opened the door for the Obama administration to launch an unprecedented legal effort targeting leakers that in several cases ensnared reporters, including Risen. All told, the Obama Justice Department prosecuted eight government employees or contractors accused of leaking to the media under the 1917 Espionage Act. "The war on leaks and other efforts to control information are the most aggressive I've seen since the Nixon administration," wrote former Washington Post Executive Editor Leonard Downie Jr. in a 2013 report published by CPJ.

Following a public furor over the administration's aggressive tactics, a leading group of journalists and lawyers that included Downie; Karen Kaiser, general counsel for the Associated Press; and Bruce Brown from the Reporters Committee, met with former Attorney General Eric Holder to strengthen Justice Department guidelines based on the formula first articulated following the Branzburg decision. This meant the Justice Department would only issue subpoenas when the information was crucial and could not be obtained by other means. The Attorney General had to approve requests, although the FBI could still obtain journalists' records using National Security Letters, which were not covered under the guidelines.

In the wake of the public backlash and after the revised guidelines were put in place, subpoenas slowed, as did the leak investigations.

But in his Senate confirmation, and in subsequent statements, Sessions has indicated he does not look favorably on the guidelines, which are voluntary and have been in place in some form since the 1970s. In a press conference in August, he said the Justice Department was reviewing them. "We respect the important role that the press plays, and we'll give them respect, but it is not unlimited," he said. Without the guidelines in place, journalists may face a flurry of subpoenas if the Justice Department moves ahead with leak prosecutions. And there is evidence that the Justice Department is doing just that.

"The Supreme Court has not recognized reporters' privilege, Congress has not passed a media shield bill. In the absence of those provisions, these self-imposed guidelines have been a meaningful constraint," points out David Pozen, a professor at Columbia Law School.

In July, Republicans on the Senate Committee on Homeland Security gave Sessions a "study," which included a list of 125 news articles (with bylines) that had allegedly harmed national security. In December, FBI Director Christopher Wray said he had created a dedicated unit to go after leaks.

One case that the Justice Department has pursued, involving a 26-year-old NSA contractor named Reality Winner, sets a chilling example and shows that prosecutors are willing to go to extremes to punish alleged leakers. Winner is accused of leaking a classified NSA report about Russian interference in the 2016 election to The Intercept. Winner was denied bail twice and may spend a year in prison before her trial even starts, despite her parents' offer to put up their house and everything they own to guarantee bail. Because the court has said her lawyers can only look at news reports containing classified information in secure facilities, they cannot even Google basic news stories from their office or discuss them with their client.

Some experts have suggested that as technology makes it easier for the Justice Department to identify leakers by obtaining information through service providers, the government will have less of a need to subpoena journalists. But this assumes that the government wants to avoid issuing subpoenas to the press, while Sessions has indicated a specific desire to go after the media and drag journalists into the legal proceedings.

Sessions personally approved a subpoena last February for John Sepulvado, a former reporter for Oregon Public Broadcasting, which required Sepulvado to testify about an interview he had with Ryan Bundy, one of the leaders of the group that forcibly occupied the Malheur National Wildlife Refuge in 2016. (The Obama administration had asked Sepulvado to voluntarily testify, but did not issue a subpoena when he declined.) The guidelines also require prosecutors to make all reasonable attempts to obtain the information elsewhere, something that RCFP attorney Selina MacLaren says they failed to do.

"The Court found that the prosecutors had another way to get the information: by asking the defendant himself. This raises questions about how the guidelines were applied," she says. The subpoena was ultimately quashed.

One looming test case involves WikiLeaks. Trump has said he loves WikiLeaks but there is no evidence that the Justice Departments shares his view. Widespread but unconfirmed reports suggest that a sealed indictment has been issued for Julian Assange, which is what is keeping him holed up in the Ecuadorean Embassy in London. If Assange were to be tried for violations of the Espionage Act, it would not only have a chilling impact on the media, but could ensnare the many journalists who had used Assange as a source.

For all of these reasons, Bruce Brown of RCFP is continuing to build up the legal defense fund and planning for the worst. While larger media organizations have general counsels and the resources to mount an adequate defense, smaller ones could find themselves unprepared. Regarding leak investigations, "we know from experience that those often go through newsrooms," Brown points out. "There's nothing more existential to journalists than facing a subpoena. We have to be extremely vigilant."

[EDITOR'S NOTE: This article first appeared in Columbia Journalism Review's "Winter 2018 Issue," published in partnership with CPJ.]

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