To watch Steven Spielberg’s “The Post” is to see how much has changed since the Supreme Court allowed publication of the Pentagon Papers in 1971. Back then the Court’s liberal majority espoused the right to publish leaks, especially those in the public interest. Justice Hugo L. Black’s opinion insisted that “the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints” while Justice William O. Douglas said, “Secrecy in government is fundamentally anti-democratic.”
A lot has changed since the Nixon Administration. Journalism is no longer ascendant. A series of court cases has affirmed the government’s right to keep secrets while limiting when reporters can legally keep sources confidential. The public’s distrust of media has never been greater. And many news-media companies continue to struggle financially.
A Gallup poll taken shortly before Donald Trump was elected President showed that only 32% of Americans — the lowest level in Gallup polling history — say they have a great deal or a fair amount of trust in the media “to report the news fully, accurately and fairly.” Other polls point to public distrust of the media’s use of anonymous sources.
At the same time, leaks have become bigger and more serious. Massive hacks including those perpetrated by WikiLeaks, Edward Snowden and U.S. Army Private Chelsea Manning have succeeded in penetrating the National Security Agency, the State Department and other government entities. Leaks from within the Trump White House and the agencies reporting to it are ubiquitous.
All of which leaves the free press in America at an increasingly precarious moment. Sensing journalists’ reputational and economic vulnerability, President Donald Trump has fought back by branding the news media “the enemy of the American people.” He dismisses any story he doesn’t like as “fake news,” even as he and others on his team have leaked sensitive material with impunity. Most ominously, he has ordered the Justice Department to review its self-imposed limits on investigating and prosecuting the media. The risk is that in fueling popular resentment and issuing demands for crackdowns, the President will succeed in undermining its ability — notwithstanding the protections enshrined in the First Amendment — to expose government mistakes, lies and deceptions.
This moment didn’t arise out of the blue. “The Trump Administration represents the most serious threat to a free press since … the Obama administration,” says Bruce Brown, executive director of the Reporters Committee for Freedom of the Press. Trump and Obama may hate each other and they have little in common. But when it comes to leaks — at least the ones they don’t control — each has aggressively sought to punish the leakers and the media that published the classified disclosures and other embarrassing material.
The fact that two such different Presidents could be embracing the same draconian approach on such a high-stakes, high-profile issue is chilling.
The numbers are stark. President Obama’s Justice Department prosecuted nine government employees or contractors under the Espionage Act for leaking information to the media and policy groups, double the number of prosecutions brought by all of its predecessors. It secretly seized Associated Press phone records in a leaks investigation, in what AP President Gary Pruitt called “a massive and unprecedented intrusion” that might be unconstitutional. The DOJ also opposed passage of a federal shield law that would have helped journalists protect their sources.
“If Donald J. Trump decides as president to throw a whistle-blower in jail for trying to talk to a reporter, or gets the F.B.I. to spy on a journalist, he will have one man to thank for bequeathing him such expansive power: Barack Obama,” wrote investigative reporter James Risen shortly before Trump took office.
During his 2016 Presidential campaign, Trump said he loved leaks of information from the Democratic National Committee that hurt Hillary Clinton. Since becoming President, however, he has complained incessantly about unauthorized leaks and he has ordered Attorney General Jeff Sessions to do something to stop them.
Sessions subsequently said the Trump Administration was pursuing 27 leak investigations, three times the number of investigations undertaken in the Obama years. His comments followed the release of a Senate Homeland Security committee report that listed an “avalanche” of harmful leaks that appeared in 125 bylined news articles.
While the Justice Department, working with Bill Evanina, the head of U.S. counterintelligence, goes after leakers, Sessions has ordered a review of department guidelines that have served to limit prosecutors’ use of subpoenas in leak investigations. Deputy Attorney General Rod Rosenstein gave Brown and a group of journalists a high-level briefing that lacked specifics, and there have been no announcements of consequence from the Justice department since then.
The DOJ guidelines aren’t a product of legislation, and on the surface, they seem arcane, telling prosecutors when they can use subpoenas and other tools to get information about news media sources, including the names of leakers. In reality, the guidelines have created a quasi-shield law that governs the news media’s relations with the courts and with their sources. In the 33 years since the first guidelines were promulgated, they have often been as effective in protecting journalists from overzealous prosecutors as they have been coercive in cases where reporters face fines and imprisonment for refusing to comply.
The review of DOJ guidelines comes at a time when President Trump is engaged in a much broader effort to debase the news media. Before and after he took office, Trump’s rallies almost always included a withering diatribe against CNN, the New York Times and other big news organizations that have been most aggressive in covering him. His followers have responded with chants of “Lock ’em up! Lock ’em up!”
Existing protections could be swept away should the Justice Department impose new guidelines that reflect President Trump’s thinking.
When reporters testify
I have been witnessing the escalating battles over leaks with more than casual interest.
More than a dozen years ago, while working as Time Inc.’s Editor in Chief, I concluded that a TIME reporter should comply with a request from George W. Bush’s Justice Department that he testify before a grand jury about a leak we received from an Administration official about a covert CIA officer, Valerie Plame. I made that controversial decision after the courts ruled we couldn’t keep secret a key source’s identity or what that source — White House deputy chief of staff Karl Rove — had told us.
Plame was a CIA operative working on weapons of mass destruction. After her husband, Joseph Wilson, wrote a column in the New York Times in July 2003 attacking President George W. Bush for misleading the public while seeking to justify his war with Iraq, Plame’s identity was leaked to several journalists in an effort to embarrass her and undermine his credibility. Deputy Attorney General James Comey subsequently appointed Patrick J. Fitzgerald, the U.S. attorney for the Northern District of Illinois, as special counsel to investigate the leaks. Fitzgerald convened a grand jury in January 2004 and soon after, he issued subpoenas seeking TIME reporter Matthew Cooper’s testimony and Time Inc.’s notes.
A federal district judge and an appellate court rejected our efforts to quash the subpoenas and the Supreme Court refused to review those decisions.
By refusing to hear our case, the top court left intact its 1972 ruling in Branzburg v. Hayes that reporters, like other citizens, could be compelled to testify before grand juries. The court’s 5-4 decision in Branzburg effectively limited the importance of its year-earlier Pentagon Papers ruling in New York Times Co. v. United States.
Judge Byron White’s majority opinion in Branzburg was clear and unambiguous: society’s interest in law enforcement outweighed the need of journalists to protect their sources. Among those judges who dissented, Potter Stewart argued for a case-by-case test that balanced the needs of the grand jury and the interests of journalists.
Despite the closeness of the vote, the Branzburg decision would have been less controversial had Justice Lewis F. Powell, who voted with the majority, not written a concurring opinion that, nonetheless, embraced Stewart’s balancing test. Over the next three decades lawyers argued Powell’s ambiguity created a so-called reporter’s privilege — an exception to Branzburg — enabling them to protect journalists and their sources in several lower court cases.
That window was slammed shut when the Supreme Court refused to hear our appeal in the Plame case. Fitzgerald and the judges who ruled against us had relied on a 2003 case, McKevitt v. Pallasch, in which an influential, conservative appellate judge, Richard Posner, had concluded Branzburg’s majority opinion should be strictly enforced without exceptions.
Department of Justice guidelines
The Supreme Court’s unwillingness to review Branzburg makes any changes in the Justice Department guidelines especially important at a time when leaks are growing in significance and frequency, as is the government’s determination to stop them.
The first DOJ guidelines laying out whether and when federal prosecutors might seek testimony from journalists about their sources were published in 1974, when Richard Nixon was President and John Mitchell was his Attorney General. Although both men disliked the journalists covering them, they were contending with strong public support for the press.
New technologies have since changed the nature of leaks and leaking. In 1971, Max Frankel, then the New York Times Washington bureau chief filed an affidavit in defense of the Times’s stories about the Pentagon Papers, the lengthy, classified report that traced U.S. involvement in Vietnam between 1945 and 1967. Frankel’s 18-page affidavit in praise of leaks described a cozy relationship between top government officials and an elite group of Washington reporters in which the officials often used the press to float trial balloons to test public opinion or new projects or policies. At other times the reporters used their relationships to pursue unauthorized disclosures, confirming on background rumors and information obtained elsewhere. A relatively small amount of information was classified and reporters were careful not to publish information that might jeopardize the lives of the people they were writing about.
While those trial balloons — more accurately called “plants” — and the unauthorized disclosures, or leaks, to individual journalists remain important, they have been augmented by “hacks,” resulting in the broad release of millions of classified and confidential files from government computers.
President Trump blames the increase in leaks on entrenched, disgruntled bureaucrats from a dark administrative state determined to undermine the President’s efforts to “drain the swamp.” Their detractors view leakers as heroes who are saving America from disaster by exposing dangerous behavior that would otherwise remain secret.
Although many journalists might personally disapprove of hackers, most of us would take information from them if offered and authenticated, since motive is always at work when information is leaked and, in theory, the hacker and the leaker are both providing similar content, albeit in different amounts. Despite being classified, disclosure of leaked information is often in the public interest and, in any case, if one publication refuses the leak, another will accept it. The information will surface.
The Espionage Act has been on the books for 100 years. It has been amended many times since 1917. Leaks of classified information are covered by the law, but it only applies if the information is leaked to injure the U.S. or “to the of advantage of any foreign nation.” The law’s focus is more on gathering and copying information than on publishing and very few people have been charged under it, leading Columbia law professor David Pozen and others to conclude that despite the complaints of Presidents, leaking is too much a part of Washington’s culture to be stopped.
Pozen is right. A large percentage of the leaks that have bedeviled our Presidents come from otherwise valued sources that might work in the West Wing, from Cabinet members and their staffs, from Republicans and Democrats in Congress, or from the committee staffers who work for them.
The huge number of people who have access to classified information is only exceeded by the massive over-classification of millions of documents every year. Too many classified documents have little or nothing to do with national security. As Supreme Court Judge Potter Stewart wrote in the Pentagon Papers case, “when everything is classified, then nothing is classified.”
It was only in 2015, halfway through Obama’s second term, that the Justice Department published a new set of guidelines governing prosecutors’ use of subpoenas in leak investigations. The new guidelines resulted from lengthy discussions with Brown and groups of editors and media executives. They reflected a truce of sorts, a case by case balancing act limiting areas where federal prosecutors might seek information from journalists. The guidelines also increase areas where they would need to provide prior notice before seeking records that might identify journalists’ sources from phone companies and other third parties.
Should the DOJ get serious about cracking down on leaks, it will most likely promulgate new rules that encourage prosecutors to increase demands for journalists to testify about their sources before grand juries. A client memo from the Latham & Watkins law firm also speculates that the DOJ might also narrow the definition of “Newsgathering,” while also expanding the definition of “National Security.”
The DOJ might also define more narrowly who is a journalist. You don’t need a license to practice journalism and while colleges and universities offer journalism degrees, many of our most successful journalists have never taken a course in the subject. Moreover, the First Amendment wasn’t written to protect big media companies. There were none at the time. Congress wanted to protect the penny press and pamphleteers. Any new guidelines might focus on the content produced rather than the pedigree of the writer or producer.
Leaks do more good than harm
Leaks can certainly cause embarrassment and there have been examples where they also caused real damage. But to a surprising degree, leaks usually do more good than harm.
Along with most Americans, I believe our government has the right to keep secrets, especially when national security is at stake. I only wish it did a better job of protecting its secrets. I also join many Americans in thinking transparency is an essential antidote against leaders who rely on secrecy to hide their mistakes, corruption and dishonesty.
If nations can have secrets, it follows that there should be laws that punish leakers who obtain or disseminate classified information illegally. I don’t think journalists are above the law. Much as I wish the Supreme Court had ruled otherwise, it shows no interest in reversing Branzburg. Since, as a result, we can be compelled to testify before a grand jury, our sources and the public should understand we shall usually do so. That said, I believe there are rare occasions when journalists and the corporations they work for may decide to engage in civil disobedience if that is the only way to protect confidential sources. We should be prepared to pay fines and be jailed for criminal contempt should we refuse to testify.
My own rule is that a journalist should not defy the courts without having good reason to believe that publication of leaked and classified information is in the national interest, and that the source’s life or livelihood would be jeopardized by revealing his or her identity. Although grand juries are supposed to work in secrecy, leaks from them are all too common.
When it comes to leaks and the press, we have always wanted it both ways. In 1734, decades before the Revolutionary War, John Peter Zenger, a New York publisher, defied government efforts to learn the names of sources who had criticized the colonial governor. He was charged with seditious libel but was acquitted at trial after his lawyer, Andrew Hamilton, convinced the jury that keeping his sources confidential was “in the cause of liberty.”
The Federalist papers, written to support ratification of the Constitution, established the principle that anonymity was an important component of free speech, when their authors, Alexander Hamilton, John Jay and James Madison, published the papers under the pseudonym Publius. In 1789, Congress passed the First Amendment, prohibiting it from “abridging the freedom of speech, or of the press.” Less than a decade later, Congress passed a Sedition Act that first placed limitations on speech. Abraham Lincoln ordered the arrest of critics who opposed the Civil War. And throughout the 19th century, many state courts were jailing reporters who wouldn’t identify their sources for stories.
In the Plame case we gave a grand jury notes belonging to Time Inc. because I didn’t think the circumstances justified our civil disobedience. Rove said he hadn’t asked for confidentiality and neither his life nor his livelihood were at risk. Although I would have done the same thing under similar circumstances today, I believe that many of the leaks and leakers telling us what is going on in the Trump White House deserve protection. If reporters and editors writing stories based on leaked information from those sources agree, Donald Trump’s “Lock them up!, Lock them up!” now a wish, may soon be reality. It’s a long way from the heady days of victory depicted in The Post.
Pearlstine is a former Time Inc. editor-in-chief and the author of Off the Record: The Press, the Government, and the War Over Anonymous Sources
This appears in the January 22, 2018 issue of TIME.
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