The Trump administration’s most dangerous attack on media has nothing to do with cries of "fake news."
- By Helen MurilloHelen Klein Murillo is a student at Harvard Law School, where she is an editor of the Harvard Law Review.
Last week, the Washington Post published leaked transcripts of President Donald Trump’s January phone calls with Mexican President Enrique Peña Nieto and Australian Prime Minister Malcolm Turnbull. Even with the administration beset by daily embarrassing leaks, this one was shocking, going well beyond the mere embarrassing portrayals of daily White House dysfunction. It is fair to presume that such transcripts are classified, and when asked about them, National Security Council spokesman Michael Anton said only that he “can’t confirm or deny the authenticity of allegedly leaked classified documents.”
So nobody should have been surprised that on Friday morning, Attorney General Jeff Sessions and Director of National Intelligence Dan Coats held a press conference condemning the many leaks and vowing investigation and prosecution of those responsible. Sessions called for “discipline” in executive agencies and Congress to stem leaks. He indicated that since January, the Department of Justice has tripled the number of active leak investigations, and he announced a new FBI counterintelligence unit to manage them.
But then Sessions got to the press: “One of the things we are doing is reviewing policies affecting media subpoenas. We respect the important role that the press plays and will give them respect, but it is not unlimited. They cannot place lives at risk with impunity. We must balance the press’s role with protecting our national security and the lives of those who serve in the intelligence community, the armed forces, and all law-abiding Americans.” Coats reiterated that the administration is “prepared to take all necessary steps to … identify individuals who illegally expose and disclose classified information.”
This marks a serious intervention in a delicate, decades-long balancing act between the federal government and professional journalists. A change in the policy about press subpoenas could have grave consequences for the government and press alike.
A subpoena is the legal tool that forces an individual to testify or produce evidence. When subpoenas are issued to journalists (or their communications providers) in leak investigations, it is most often for the purpose of identifying a leaker: Match the relevant reporter’s telephone records to an individual with access to the classified information — or better yet, force the reporter to testify directly as to the source — and you’ve got your leaker. But you’ve also compromised the press’s ability to protect their sources, undermining their ability to do their job.
Reporters who refuse to reveal their sources in compliance with such subpoenas risk contempt charges. To enforce subpoenas, courts and Congress have the authority to bring contempt charges against those who refuse to comply with lawful orders. Contempt charges aim to compel compliance with the order and can include jail time. In 2005, New York Times reporter Judith Miller famously submitted to jail time for contempt rather than reveal a confidential source in the Valerie Plame leak investigation. (After two and a half months in jail, Miller was released early when Scooter Libby gave a waiver authorizing the government to question reporters about his conversations with them and Miller agreed to testify.)
Testimony that may otherwise be required by law might be nevertheless protected by a privilege. Such privileges include the Fifth Amendment privilege against self-incrimination, marital communications privilege, attorney-client privilege, and executive privileges. The question is whether such a privilege does or should apply to reporters, exempting them from revealing sources.
While the Constitution limits government intrusion on the freedom of speech and of the press, the law does not offer absolute protection for journalists against revealing their sources. Congress has not enacted robust protections and the Supreme Court has not interpreted the First Amendment as itself embodying such a privilege — nothing approximating a broad “press privilege” relieving reporters from revealing sources.
Such a privilege is protected at the state level in nearly all states. New York’s statutory press privilege, for instance, broadly protects professional journalists against contempt charges “for refusing or failing to disclose news obtained or received in confidence or the identity of the source of such news coming into such person’s possession in the course of gathering or obtaining news for publication.”
But no such privilege has been recognized uniformly at the federal level. In 1972, the Supreme Court rejected a broad First Amendment press privilege in Branzburg v. Hayes. Justice Lewis Powell joined the five-justice majority to reject an unqualified press privilege against revealing confidential sources, but wrote a puzzling separate concurrence suggesting some limited privilege subject to a balancing against the government’s interest in a particular case. The state of the law remains uncertain but what we do know is that there is currently no broad, unqualified First Amendment privilege against revealing confidential news sources. (Importantly here, the U.S. Courts of Appeals for the District of Columbia has agreed that even if there is a First Amendment press privilege to not reveal sources, the privilege is not absolute.)
Instead, since 1970, the executive branch has voluntarily restrained itself by limiting the situations in which it will subpoena reporters in investigating leaks. Those self-restraints are codified in federal regulation. Those regulations explicitly recognize the need to “strike the proper balance among several vital interests: Protecting national security, ensuring public safety, promoting effective law enforcement and the fair administration of justice, and safeguarding the essential role of the free press in fostering government accountability and an open society.”
In striking that balance, the Justice Department explains that subpoenas directed to the news media are “extraordinary measures, not standard investigatory practices.” As such, press subpoenas are to be approved by the attorney general (or other high-ranking DOJ officials in certain limited cases) and are to be issued only where the information is “essential” and only “after all reasonable alternative attempts have been made to obtain the information from alternative sources.”
A system of mutual restraint thus governs in the face of indeterminate legal boundaries. Reporters don’t want to go to jail and the government doesn’t want to provoke a sweeping Supreme Court ruling or congressional enactment of an absolute press privilege. So reporters notify the government of stories to be published and often respect government requests to hold stories for some period of time for national security reasons. The government reserves the right to subpoena in extraordinary cases, but agrees to correspondingly extraordinary procedures.
But critical to making this delicate system work is that the government maintains credibility — that the public believes the government pursues leak investigations, particularly those investigations that directly implicate press freedoms, for legitimate national security reasons, not simply because the leak is embarrassing. When the president lambasts leakers for imperiling national security and threatens to subpoena the press over embarrassing leaks, but then retweets news stories he finds favorable even if they are based on highly sensitive classified defense information, he erodes that credibility. He erodes the government’s foothold in that delicate balance with the press.
It is unclear what the attorney general’s statement about press subpoenas portends for Justice Department policy and for the delicate balance that has held for decades. Some legal commentators have noted that the department itself has a lot to lose in upsetting the status quo and potentially forcing an adverse First Amendment ruling. What is likely a more immediate threat to the balance is a president who lacks any regard for its fragility and for the importance of the government’s credibility in its preservation.
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