The Assault on Freedom of the Press

The war with the press did not start with Donald Trump. It began under George W. Bush and expanded when Barack Obama went after New York Times reporter James Risen in that administration’s prosecution of Jeffrey Sterling, a former undercover CIA agent accused of espionage.

The Justice Department wanted Mr. Risen to testify at the trial of Jeffrey Sterling, a former C.I.A. officer charged with providing him details about a botched operation in Iran that was intended to disrupt that country’s nuclear program. Mr. Sterling had raised concerns inside the government about the program, and prosecutors suspect he took those concerns to Mr. Risen, who described the program in his 2006 book, “State of War.”

Mr. Risen, a two-time Pulitzer Prize winner, was the highest-profile journalist drawn into the Obama administration’s attempt to crack down on government officials who talk to reporters about national security. The Justice Department has brought more charges in leak cases than were brought in all previous administrations combined. The case became a rallying cry for journalism groups and civil rights advocates. Mr. Risen took his fight to the Supreme Court and lost, but Attorney General Eric H. Holder Jr. ultimately said prosecutors would not force him to reveal his sources.

Risen took that the position that under no circumstances would he reveal his confidential sources to anyone.

“We said from the very beginning that under no circumstances would Jim identify confidential sources to the government or anyone else,” Mr. Risen’s lawyer, Joel Kurtzberg, said. “The significance of this goes beyond Jim Risen. It affects journalists everywhere. Journalists need to be able to uphold that confidentiality in order to do their jobs.”

In 2015, Attorney General Eric Holder tightened Justice Department rules governing reporters’ notes, phone records and e-mails


Mr. Holder first began reviewing the news media guidelines in 2013 during heavy criticism after prosecutors seized some telephone records from The Associated Press and labeled a Fox News reporter, James Rosen, a potential criminal co-conspirator for asking about classified information. He announced revisions last February that made it significantly harder, though not impossible, to demand phone records, notes or emails from news organizations.

Last year, Mr. Holder prevented the F.B.I. from portraying a reporter as a co-conspirator as a way to get around a ban on getting search warrants for reporting materials. That rule would have prevented the subpoena in Mr. Rosen’s case. He also made it harder for prosecutors to seize records in secret, as he did in the A.P. case. And he expanded that protection beyond phone records to cover emails and reporting work product, protections that did not exist previously.

But those guidelines extended protections only to journalists engaged in “ordinary news gathering.” That phrase was not defined. [..]

The rule revisions mean that as Mr. Holder prepares to leave office, he will leave behind internal rules offering journalists more protection from government intrusion than ever before. They were released the same week that the Justice Department decided, after a seven-year battle, not to subpoena James Risen, a reporter for The New York Times, to testify at a leak trial.

Those rules were in place until now.

Trump’s Justice Dept escalates its disturbing crackdown on leaks by seizing New York Times reporter’s phone and email records

by Trevor Timm, Executive Director of Freedom of the Press Foundation

In an aggressive escalation of its already disturbing crackdown on leaks, Trump’s Justice Department secretly obtained a year’s worth of phone calls and email records of Ali Watkins, a New York Times reporter who previously covered national security issues for Buzzfeed.

As the New York Times reported on Thursday evening:

Investigators sought Ms. Watkins’s information as part of an inquiry into whether James A. Wolfe, the Senate Intelligence Committee’s former director of security, disclosed classified secrets to reporters. F.B.I. agents approached Ms. Watkins about a previous three-year romantic relationship she had with Mr. Wolfe, saying they were investigating unauthorized leaks.

The phone and email records seized by the government, which Watkins was notified about after the fact and was therefore unable to challenge in court, included “those associated with her university email address from her undergraduate years,” according to the Times. [..]

At virtually the same time the New York Times story broke, the Justice Department announced it has indicted Wolfe for allegedly lying to investigators about his contact with reporters, but at least so far, has not charged him with leaking any alleged classified information.

The indictment of Wolfe released by DOJ—which, as always, should be taken with a huge grain of salt—mentions at least three other unidentified reporters. The indictment contains the content of conversations Wolfe allegedly had with multiple reporters on Signal, an encrypted messaging application. It’s unclear at this time whether those unidentified reporters had their phone and email records directly surveilled as well. [..]

While this is the first publicly known instance of the Trump administration directly surveilling a reporter to attempt to root out their source, there are undoubtedly others. Attorney General Jeff Sessions has previously stated the Justice Department has tripled the number of leak investigations since President Obama was in office and has talked about “revisiting” the agency’s media guidelines. These rules are intended to prevent the seizure of journalists’ communications records in all but extreme cases. [..]

Regardless, it certainly seems like the Justice Department may have violated these internal guidelines as part of this case, which require the Justice Department “exhaust” all other means of investigating before considering directly going after a journalist. As reporter Barton Gellman pointed out, it appears that investigators already had access to Wolfe’s phone, and by subpoenaing Watkins’ personal records, they almost certainly would be able to uncover other confidential sources.

The Wolfe indictment marks the third alleged source of journalists prosecuted by the Trump administration. All leak investigations — whether they directly target reporters or not — are a grave threat to press freedom. Whistleblowers are the lifeblood of reporting, and the Trump administration is directly attacking journalists’ rights by bringing these cases.

It should be pointed out that the targeting of journalists and their sources is not unique to Trump. As the New York Times also noted, “The seizure…suggested that prosecutors under the Trump administration will continue the aggressive tactics employed under President Barack Obama.”

Sadly, as we detailed when Trump was elected, President Obama’s Justice Department laid the groundwork for the current crackdown on leaks and journalism we are currently seeing from Trump and Sessions. Led by former Attorney General Eric Holder, the previous administration prosecuted more leak cases than all other previous administration combined.

Several of those cases involved directly spying on reporters by subpoenaing their phone lines, accessing the content of a journalist’s email, and other disturbing tactics that exposed travel records, financial records and more. The Obama-era Justice Department also gutted reporter’s privilege in the Fourth Circuit, home to many of the country’s intelligence agencies.

This is a direct assault on the press and the First Amendment in which our most precious freedoms where codified by Our Founding Fathers. Congress needs to start exercising its oversight and control of the Executive branch, in particular this one. Vote November 6 if you value our rights.