In the summer of 2009, less than a year after President Obama took office, one of the first orders of business for the newly empaneled Senate Judiciary Committee was passing a long-stalled federal ‘media shield’ bill, which would finally provide a uniform level of protection to reporters who get subpoenaed to testify against their sources in court.
The bill, which had previously been scuttled by Republican Congress, now had strong support in a Democratic Congress, and seemingly, a newly-elected Democratic president, who had co-sponsored an almost identical bill when he was a senator.
But just as it looked like the bill would sail through Congress and make its way to the president’s desk, it was stopped in its tracks. President Obama suddenly reversed course from his previous position and announced he would oppose the bill if the Senate didn’t carve out a giant national security exception that would make the important protections within it all but meaningless.
Sen. Arlen Specter, then a Republican, called Obama’s reversal “unacceptable” at the time, adding: “The White House’s opposition to the fundamental essence of this bill is an unexpected and significant setback. It will make it hard to pass this legislation.” The Democrat’s main sponsor, Sen. Chuck Schumer expressed his dismay as well. National security leak cases are usually the only cases the federal government prosecutes that regularly ensnare journalists, so Obama’s decision essentially killed the bill.
Sadly, this incident was only the first of several moves by the Obama administration that laid the groundwork for a potentially unprecedented crackdown on the press by the incoming Trump administration.
In the 2016 campaign, Donald Trump was the most openly hostile presidential candidate to press freedom we have seen in modern history. But many of the tools that will be at Trump's disposal were entrenched and expanded by the Obama administration.
While a strong federal shield bill quickly became a pipe dream under Obama, there were still a patchwork of state laws and common law privileges in some federal court districts that did provide some protection to journalists who get called to testify against their sources. Unfortunately, Obama’s Justice Department then moved to attack ‘reporter’s privilege’ in the courts as well.
When Obama came into office, New York Times reporter and Pulitzer Prize winner James Risen had been facing a subpoena under the Bush administration for a story in his book about a spectacularly botched CIA operation that handed over almost complete nuclear bomb blueprints to Iran. Many were expecting the Obama's Justice Department, led by then-Attorney General Eric Holder, to drop the subpoena. Instead they renewed it, and in the process, ended up destroying reporter’s privilege in one of the most important federal circuits in the country.
After a district court ruled that Risen didn’t have to testify against his source because he was protected by a common law reporter’s privilege previously established in the Fourth Circuit, the Obama administration took their case to the Fourth Circuit Court of Appeals. There, a three judge panel reversed the prior ruling and held that reporter’s privilege did not, in fact, exist. Risen would be forced to testify—along with any other reporter the Justice Department decided to subpoena in the future.
The Obama administration eventually dropped their subpoena against Risen right before the trial because Risen was threatening to go to jail rather than reveal his source, but the damage had already been done. Obama’s Justice Department had eviscerated important protections for journalists in the federal court district that covers Virginia and Maryland, where hundreds of thousands of national security workers—and potential sources—live.
Under his newly-proposed Attorney General Jeff Sessions, also an avowed hater of the press, Trump is now free to subpoena reporters working in the Fourth Circuit at will. The Justice Department’s “media guidelines” that supposedly restrict the Justice Department from subpoenaing or surveilling reporters—updated by the Obama administration after several other scandals involving going after journalists—can potentially be ripped up on Trump’s first day in office. (Those guidelines also already contain gaping exception involving National Security Letters that the Obama administration is fighting Freedom of the Press Foundation in court to prevent from releasing.)
But the by far the biggest danger from the Trump administration is how they will decide to use the Espionage Act, the draconian and unconstitutional World War I-era law, which was originally meant for spies—not sources and whistleblowers.
Soon after taking office, Obama’s Justice Department began to prosecute more sources and whistleblowers under the Espionage Act than all other administrations combined. Before 2009, only three prosecutions had ever been attempted. One those prosecutions, Daniel Ellsberg of Pentagon Papers fame (and one of our co-founders), ended in mistrial due to government misconduct. The other two were quirky cases that didn’t seem to provide much in the way of precedent.
Starting in 2009, at least nine cases were brought under Attorney General Holder, and national security journalists have described an unprecedented ‘chill’ to their investigative reporting ever since.
Prosecuting journalists’ sources under the Espionage Act is now built into the system. As Politico’s Peter Sterne detailed last week, while Donald Trump has made a lot of noise about “open[ing] up our libel law,” it’s Trump’s ability to use the Espionage Act that journalists should really be scared about.
And it’s not just sources that will have to be worried about Espionage Act prosecutions under the Trump administration; it’s journalists as well. While we believe the law is patently unconstitutional when applied to the publishers of secret information, at least three grand juries have been empaneled in the last 70 years with the intention of prosecuting journalists under the law. While no indictment has followed, there’s nothing stopping the Trump administration from attempting to be the first.
Under the Obama administration, the Justice Department took the unprecedented step of naming Fox News reporter James Rosen (different than James Risen) as an unindicted “co-conspirator” to Espionage Act charges in another leak case. The move was met with swift backlash from press freedom advocates, and former Attorney General Eric Holder later said he regretted the move. But it’s now a blueprint that could easily be followed by the Trump administration to stifle adversarial reporting.
There’s no doubt that adversarial investigative reporting will be crucial to hold the Trump administration accountable. As our board member Glenn Greenwald has written, leaks and whistleblowing have never been more important or more noble. This is why at Freedom of the Press Foundation, we are stepping up our efforts in 2017 to build encryption tools and train journalists how to use digital security techniques to protect their sources in the Trump era.
But unfortunately, in part due to moves made by the Obama administration, reporters covering national security issues—and the whistleblowers who are critical to the process—have never been under more threat. And under Trump, it looks like it will only get worse.