The announcement of charges Monday against a federal contractor for allegedly leaking a top secret National Security Agency document to a news website is giving journalists flashbacks to leaker prosecutions under President Barack Obama.
The charges, tweeted New York Times reporter Scott Shane, followed “the precedent of Obama, whose administration set the record for leak prosecutions.” Adam Goldman, a Times colleague who had his phone records secretly seized during a 2012 leak investigation, asked whether President Donald Trump would top the number of leak prosecutions set during the previous administration.
First Amendment attorney James Goodale believes so.
“I suspect the Trump administration will surpass the record set by Obama for his eight years,” Goodale, who represented The New York Times against the Nixon administration in the landmark Pentagon Papers case, told HuffPost.
Ever since Trump won the Republican nomination for president, journalists have feared he would not just continue the Obama administration’s unprecedented crackdown on leaks but accelerate the practice. Trump has a love affair with the press, reveling in the coverage he receives and keeping close tabs on the media industry’s ebbs and flows. But he’s also demonized the press corps repeatedly, labeled them the “enemy of the people,” talked publicly about opening up libel laws, and vowed that administration employees who leak information to the press would be punished.
Obama provided the template for an administration using its legal resources to go after reporters’ sources. Trump adds the aggressive, litigious personality.
New York Times reporter James Risen, who fought the previous administration for seven years after being compelled to testify about a source for his book published during the George W. Bush era, wrote as much in December. Trump, he wrote, “seems likely to enthusiastically embrace the aggressive crackdown on journalists and whistle-blowers that is an important yet little understood component of Obama’s presidential legacy.”
How we got to this place is owed to an act passed by Congress shortly after the turn of the 20th century. The Espionage Act of 1917, which criminalized the relaying of information intended “to be used to the injury of the United States, or to the advantage of any foreign nation,” was used by the Obama administration in prosecuting eight leak cases ― more than all previous administrations combined. Before Obama’s term, the law had been used only four times since 1971 in relation to classified disclosures to the news media.
The Trump administration cited the Espionage Act once more on Monday.
Reality Leigh Winner, the 25-year-old federal contractor charged by the Trump administration’s Justice Department, was accused of providing an online news outlet with a top secret document from May 5. The document appears to be the one published by The Intercept on Monday that revealed an alleged Russian cyberattack was aimed at a voting software company and more than 100 local officials in the United States shortly before the 2016 election. The Intercept reported it obtained the document through the mail from an anonymous source.
Indeed, Winner ― like leakers charged during the Obama years under the Espionage Act ― is accused of giving classified materials to a journalistic entity rather than a foreign adversary, yet still faces charges under the century-old statute.
What remains to be seen is whether the current Justice Department will go where its predecessor wouldn’t and prosecute a journalist for receiving classified information.
In 2013, the Obama administration agreed to new rules in dealing with journalists after facing blowback from revelations of seizing Associated Press phone records and identifying Fox News reporter James Rosen as a co-conspirator in a leak case. Former Attorney General Eric Holder said in 2014 he would not jail journalists for doing their jobs.
Attorney General Jeff Sessions has been unwilling to similarly commit to not jailing journalists for obtaining classified information in the course of reporting and Trump reportedly told then-FBI Director James Comey in a private February meeting that he should imprison journalists in leak cases. The Justice Department recently declined to comment on whether journalists could be jailed.
The White House has not responded to multiple requests for comment on the matter but Goodale, like other press freedom advocates, is not optimistic.
“I believe there’s a good possibility that reporters will be prosecuted at some point in time,” Goodale said.
One early case that will indicate where the Justice Department comes down on this issue is that of WikiLeaks chief Julian Assange, who remains in the Ecuadorian Embassy in London.
During the Obama administration, federal prosecutors opened a grand jury investigation into Assange following WikiLeaks’ 2010 publication of a trove of classified documents regarding the Iran and Afghanistan wars and U.S. diplomatic efforts abroad. Chelsea Manning, the Army private who was charged under the Espionage Act for providing the documents to WikiLeaks, was recently released from prison after serving seven years of a 35-year sentence.
The Obama administration did not prosecute Assange, an act which could have opened the door to charging a news organization, given that WikiLeaks is a publisher, albeit an unconventional one. But the case was not closed and the Trump Justice Department ― despite the president’s enthusiastic support for WikiLeaks during the 2016 election ― is reportedly considering charges over the 2010 disclosures and the group’s more recent publication of classified CIA documents.
Goodale said he is concerned that Assange could be charged not with the Espionage Act but for conspiring with someone violating it. “If he is convicted on a conspiracy charge, it sets a precedent of going after reporters on a conspiracy theory,” he said.
Goodale said he could envision the Trump administration continuing to follow the Obama-era practice of prosecuting leakers but also could imagine it ignoring guidelines the previous Justice Department agreed to after criticism from news organizations ― and thus finding a way to charge journalists for conspiring with sources.
One difference between the Trump administration and its predecessor, he said, is “they don’t care how much the press scream.”