When President Donald Trump's nominee for attorney general, William Barr, was asked at his confirmation hearing in January whether he would ever consider jailing a journalist, Barr paused for about eight seconds, then said he could "conceive of a situation" where a journalist is jailed as a "last resort." Such equivocation was troubling to press freedom advocates. And it was alarming given the Trump administration's emerging record of prosecuting those who allegedly leak information to the press.
Trump's White House is building on a troubling precedent set by Barack Obama. The U.S. Press Freedom Tracker has documented six prosecutions of people in relation to their communication with the press since Trump assumed office: a faster pace when compared with the 10 prosecutions the Obama administration pursued over eight years.
While no journalist has been directly prosecuted in a leak investigation since Trump came to office, some reporters covering national security or other sensitive issues say the aggressive pursuit of alleged leakers is affecting their work.
In conversations with over half a dozen top national security reporters and editors at a range of publications, some journalists said they worry that Trump's anti-press attitude could translate into criminalizing reporting on leaks; others that the administration may surveil their communications in the midst of an aggressive leak investigation; and most agreed that the prosecutions are chilling key sources and potential whistleblowers.
Many fear that the pace of these investigations is "part of a larger campaign to discredit the press," as James Risen, a senior national security correspondent at The Intercept, told CPJ.
The Trump administration has pursued three of the cases under the Espionage Act--a tactic that press freedom advocates have long opposed as it conflates the act of leaking information in the public interest with spying for a foreign power. Of the 10 prosecutions pursued under the Obama administration, eight were under the Espionage Act. The cases filed under the current administration, which feature on the U.S. Press Freedom Tracker, include Reality Winner, a former defense contractor convicted of emailing national defense information to a publication; former FBI agent Terry Albury; and former CIA agent Joshua Schulte. Albury pleaded guilty, and Schulte's case is pending.
"We see both an acceleration of bringing these cases and the punishment becoming more severe," Gabe Rottman, the director of technology and press freedom at the Reporters Committee for Freedom of the Press, told CPJ. "This threatens the free flow of information, the ability of reporters to get the information they need to do their jobs."
While there's no clear policy shift under the Trump administration, the prosecutions, coupled with the president's rhetoric, are generating a number of downstream effects.
"There's fear of reprisal, whether legal or professional, it's a general sense of anxiety," Spencer Ackerman, a national security reporter at the Daily Beast, told CPJ.
"Are there people who talked to me, who've stopped talking to me? Yes," Adam Goldman, who covers national security for The New York Times, said.
Several journalists said they were concerned that the government could surveil them as part of investigations into their sources. Many said they felt under added pressure to guard sources' identities, encrypt communications, and employ increasingly covert tactics as they report.
The risk of being surveilled was seen in case of New York Times reporter Ali Watkins. As part of the 2017-2018 investigation into Senate Intelligence Committee staffer James Wolfe, with whom Watkins had previously been in a relationship, the DOJ obtained years of Watkins' email records without her knowledge, according to the Times. Wolfe was later sentenced to two months in jail for lying to the FBI about his contacts with the press. The conviction was not related to Wolfe's communication with Watkins. according to the Times. (The Times said it reassigned Watkins to a new beat after an internal review.)
The increase in prosecutions began with the last administration. In a 2013 CPJ report, Leonard Downie Jr. wrote that the Obama administration's war on leaks was the most aggressive "since the Nixon Administration." Obama's Department of Justice (DOJ) named Fox News' James Rosen as an unindicted co-conspirator to access the content of his emails, and subpoenaed Risen as part of an investigation into a former CIA agent convicted of giving classified information to a journalist.
As a result of a public backlash, in 2015 the Obama administration released "media guidelines," designed to reduce journalists' exposure to leak investigations. They recommended that high-level DOJ officials sign off on subpoenas for journalist records and that investigators exhaust all other leads before turning to a journalist's communications with a source. Attorney General Eric Holder told a media advisory group that no journalist would go to jail for doing their job.
None of those changes were codified in statutes--they were merely made part of DOJ regulations, leaving discretion with officials, Mary McCord, a former high-ranking national security lawyer in the Obama administration, told CPJ.
While serving as attorney general under Trump in 2017, Jeff Sessions said that the DOJ was reviewing the guidelines, and suggested they should be loosened.
A DOJ spokesperson told CPJ in February that the guidelines had not been formally changed, although some media reports indicate that the DOJ is exploring ways to make it easier to obtain a journalist's records without their knowledge. The DOJ declined to comment to CPJ on the status of the review.
"The single greatest difference between the Obama and Trump administration's attitude toward the press is that Obama's attorney general, Eric Holder, promised that the Justice Department on his watch would never prosecute a reporter for doing his or her job," Jane Mayer, a reporter at The New Yorker, told CPJ. "That protection is now gone. These feel like dangerous days for reporters."
In an attempt to assuage concerns over the Trump administration's leak investigations policies, in 2017, Deputy Attorney General Rod Rosenstein said that the DOJ would not "prosecute journalists for doing their jobs." But, he added that "there might be a circumstance" where a journalist breaks the law by publishing.
"An increase in leak investigations could indicate that, at the highest levels at DOJ, there are some changes in how they are looking at the press," McCord said. But, at the same time, it could be a result of a higher volume of leaks, or of leakers leaving an easily followed electronic trail.
The use of the Espionage Act in recent cases has again raised the question of whether the act could be used to prosecute journalists. Rottman told CPJ that if a journalist was charged for reporting on classified information, it would be "crossing the Rubicon." However, McCord, said, "These decisions about whether you are going to refer to a reporter as a co-conspirator, for example--those are policy calls."
The act has never been used to directly prosecute a journalist. But the rise in prosecutions of people communicating with the press is worrying, several journalists said. Against that backdrop, press freedom advocates expressed concern over reports in November about a possible sealed indictment against WikiLeaks founder Julian Assange. The Reporters Committee filed an unsuccessful suit to unseal any charges, in an attempt to see if the government was making arguments that could have broader implications for journalists reporting on or publishing leaked information.
A number of journalists told CPJ that they assume the Trump administration is applying particular scrutiny to leaks around the DOJ and Congress's investigations into Russian interference; a reflection of the president's personal--and political--animus.
"Today I think it's worse than ever. I think it's worse than in the Obama administration," said Risen. "They have accelerated the number of prosecutions and arrests, and to me it seems like a much more politicized process than ever before."
Mayer said she also sees a worrying trajectory. "I've been covering politics in Washington since 1984, when I became The Wall Street Journal's first female White House correspondent," Mayer said. "I've never seen an administration remotely as hostile to the press as President Trump's."