Congress shall make no law . . . abridging the freedom of speech, or of the press . . . (US Const., Amend. I).
It’s one thing for Donald Trump and his minions to go about their usual buffoonery — the kind that entertains their rubes, sets the White House as the stage for a farcical reality show, and makes our once-proud nation an international laughingstock. But when they put on their jackboots and threaten the most essential safeguards of our self-rule, we’ve reached a decidedly unfunny place.
Americans need to know that when people like Donald Trump and Jefferson Beauregard Sessions The Third say — as they now have — that they will target the Fourth Estate, subpoena journalists to obtain the identities of leakers who embarrass Trump, and then throw those journalists in jail if they don’t snitch, well, they (
Trump and Sessions) have the wherewithal to do it.
1. There is no constitutional reporters’ privilege that protects journalists from subpoenas.
In a 1972 case called Branzburg v Hayes, the Supreme Court ruled that there is no such thing (as a constitutional matter) as a reporters’ privilege to keep the identity of confidential sources secret. That was a shaky 5-4 decision, but it’s never been overruled, and there’s no reason to expect that a Court with five Republican appointees (with Trump’s Neil Gorsuch filling the Merrick Garland seat) will pick the present time to revisit that ruling. (Note that one justice of the five in the Branzburg majority left open the possible need for a privilege in some future circumstance, which some lower courts have taken as an invitation to flirt with the idea. The fact remains, however, that there is no nationally recognized, constitutionally mandated privilege.)
In Branzburg, the Court explicitly held that when a reporter is served with a subpoena to testify about known criminal activity, he or she must obey that subpoena just like any other poor sap who gets a subpoena — or face a contempt hearing to which he or she would be well advised to bring an overnight pouch.
In case there was any doubt about that, ask Judith Miller, the New York Times reporter who defied a federal subpoena directing her to disclose the identity of the source (Scooter Libby) who told her that Valerie Plame (the wife of George W. Bush-era whistle-blower Joe Wilson) was an undercover CIA operative — and wound up behind bars for 85 days.
If Trump and Sessions want to prioritize leak investigations, subpoena journalists for source information, and get those subpoenas enforced, there’s no constitutional bar to their doing so.
The Branzburg Court did state, however, that there was nothing stopping Congress or state legislatures from creating a reporters’ privilege if they wanted to.
2. There is no federal statute creating a reporters’ privilege that protects journalists from subpoenas.
And every state but one (Wyoming) does have what’s called a “shield law” that creates a privilege for reporters to keep their sources confidential. But those shield laws only apply to proceedings in state courts involving state-issued subpoenas.
Although journalists have been lobbying Congress for years to enact a federal shield law, Congress has so far declined to do so. You’ll note that the language of the First Amendment cited at the top of this post prohibits Congress from abridging the freedom of the press; there’s no constitutional command that Congress take measures to actualize that freedom.
Since the investigations contemplated by Trump and Sessions would involve federal agencies looking into federal crimes, state-level shield laws would do nothing to protect journalists.
3. The only thing stopping the federal government from pursuing journalists is the restraint the Obama Administration imposed after being embarrassed.
Nonetheless, the Obama Administration, after being embarrassed by the overzealous pursuit of reporters by its own Department of Justice, decided to restrain itself:
On July 12, 2013, the . . . [DOJ] released a report announcing new guidelines relating to obtaining records or information from the news media. The report came in response to President Obama’s May 2013 request that the Attorney General revisit the Department’s media policies after it was revealed that the Department had secretly subpoenaed two months’ worth of phone records for some 20 phone lines used by Associated Press journalists. In its Report . . ., the Department announced significant changes in its policies relating to search warrants, subpoenas, and court orders aimed at gathering information from the news media . . .
But since the Obama Administration’s efforts amounted to policy changes rather than legal changes (more on that below), it was clear that the press remained vulnerable:
The new DOJ news media policies represent a constructive response by the Obama administration to the AP controversy, although their precise impact will depend upon the implementing regulatory language and its interpretation by the DOJ. As the Report acknowledges, the new DOJ policies do not obviate the need for a federal media shield law . . .
Despite Obama’s support for a federal shield law, none was ever enacted.
4. Those Obama-era rules can be changed.
The rules adopted under President Obama became part of the Code of Federal Regulations. Regulations, although they have the force and effect of law after being adopted, are not really laws in that they are not statutes passed by Congress (remember Schoolhouse Rock?). Rather, regulations are rules made by a presidential administration that, consistent with congressional statutes, lay out administration policies as to how to enforce those statutes (laws).
So regulations, unlike congressional statutes, can be changed from president to president. Watch Sessions announce a review of Department of Justice regulations and policies (not statutory laws) as almost an afterthought during his recent statement threatening both leakers and the press (listen carefully at around the 6:30 mark):
The Trump Administration is no Obama Administration, and Trump has a reason to go after the press that Obama never did: it’s destroying his presidency with its prying into his corruption, incompetence, and emotional instability.
His administration’s threat to go after journalists is not about national security; it’s about the impending political prosecution of journalists who dare to expose Trump — with the help of patriotic whistle-blowers — as the vulgar and noxious menace to our institutions that he is.
Unfortunately, there are fewer constitutional and legal roadblocks to Trump’s assault on the free press than Americans might think. That means it’s going to be up to the people, and not courts, to resist these excesses.