Anyone who doubts that Donald Trump could use the levers of the presidency to strike back at the media should talk to Chip Babcock.
He’s the veteran First Amendment attorney who represented the Dallas Times Herald in February 1984, when one of its reporters was facing a possible indictment for reporting on undocumented immigrants.
The reporter, Jack Fischer, was in a car with a nun, a Catholic lay worker, and three undocumented Salvadoran migrants when the car was stopped by the border patrol and its occupants were arrested. An assistant U.S. attorney drew up an indictment against Fischer and the others.
Babcock filed an emergency motion in federal court, arguing that the reporter could not be indicted because the U.S. attorney general had not signed off. Under Justice Department policy, the attorney general—the top law enforcement official in the nation—must approve any indictment of a member of the media.
“There is no statute that says, if journalists break the law, they don’t have to pay for it,” Babcock told POLITICO, remembering the moment. “But there is a regulation that says, if you’re going to indict a journalist, we need the senior-most law enforcement officer of the United States to sign off on it.”
The assistant U.S. attorney rewrote the indictment, removing Fischer’s name.
“If [U.S. Attorney General Edwin] Meese had been willing to sign off, then I have no doubt whatsoever that the reporter would have been indicted and he would have gone to trial,” Babcock said.
Would Sen. Jeff Sessions, Trump’s pick for attorney general, be willing to approve an indictment of a journalist? A spokesman for his office did not respond to a request for comment.
But the incident illuminates the fact that the media relies to a degree not widely appreciated on support and cooperation from the Justice Department, among other government agencies, to perform its duties.
Now, in the wake of Trump’s election to the presidency, many lawyers who represent journalists and media organizations are worried. While many reporters think their First Amendment rights guarantee a broad swath of freedom to operate professionally, many interactions between government and the press are lightly regulated and not specifically protected by the Constitution. They have persisted more out of tradition and potentially reversible regulations than through statutes. In other words, press protections as most have understood them over the past half century depend to a large degree on observance of longstanding political tradition.
To say that Trump has certainly shown a willingness to disregard tradition when it comes to the media would be an understatement.
During his campaign, Trump went long stretches without holding press briefings, did not let the press travel on the same plane with him and denied press credentials to media organizations that were critical of him. The president-elect has also failed to set up an official protective press pool—a group of reporters who travel everywhere with him and document his interactions—though his campaign has said that one will be in place by the time of his inauguration. When he sat down with Japanese Prime Minister Shinzo Abe in Trump Tower, his first meeting with a foreign leader, he refused to let the press photograph the meeting. This is all unprecedented behavior for a modern presidential candidate and president-elect.
Trump and his administration will have a broad range of opportunities to curtail the media.
What specifically could a Trump White House do to blunt the press’ check on his government?
“I hate to give them a list of things to do!” Floyd Abrams, the legendary First Amendment attorney who represented The New York Times in the Pentagon Papers case, told POLITICO.
But it’s not hard to guess. For one thing, Trump could expand the precedent set by the Obama administration in prosecuting whistleblowers and other government employees who leak information to journalists.
During the Obama administration, the Justice Department brought more criminal charges under the Espionage Act—a vague 1917 law that makes it illegal to share information related to national security—than it had under all previous presidents combined. It used the Espionage Act seven times against government employees who spoke to reporters. If Trump continues to aggressively prosecute reporters’ sources, it will make it much tougher for journalists to report on the government.
“What is very true is that an increase in prosecution of leakers and leak investigations has a huge chilling effect on the ability to report important information about what the government is up to,” said Laura Handman, a partner at Davis Wright Tremaine who specializes in media and First Amendment law.
This could be especially damaging to journalists because confidential sources and government leakers are likely to be the best source of exposing potential wrongdoing in Trump’s government.
Trump does not seem interested in actually keeping the press informed about his government activities. He is leaning toward appointing Laura Ingraham—a conservative commentator who believes mainstream media organizations are “worse than irrelevant”—as White House press secretary. High-profile Trump supporters like Fox News host Sean Hannity have even suggested that Trump should scrap the whole idea of a White House press corps.
Here, too, Trump would only be reversing a tradition, since there is no law mandating that the president hold news conferences. Trump could refuse to talk to the press entirely, if he wanted.
In the absence of official access to the Trump administration, political reporters will increasingly have to rely on confidential government sources, who in turn could become the targets of Trump’s leak investigations. In other words, the regular task of covering the White House becomes a much more high-stakes proposition.
Trump’s Justice Department could also ask for more federal grand jury subpoenas against reporters who rely on confidential sources to report on government activities.
This is another tactic that the Obama administration has used. New York Times reporter James Risen was nearly held in contempt of court and thrown in jail when he refused to identify one of his sources, who was being prosecuted under the Espionage Act.
The Trump administration could even try to use the Espionage Act to bring criminal charges against journalists, according to First Amendment experts.
“There are sections of the Espionage Act which have now been used, under President Obama, against leakers which could be used against those who publish information obtained from those leakers,” Abrams said.
No presidential administration in modern times has used the Espionage Act against journalists, but the Obama administration did come dangerously close once.
In a 2010 search warrant related to an Espionage Act case, it named Fox News reporter James Rosen as an “aider, abettor and/or co-conspirator.” Rosen was never charged with a crime, though his source was convicted under the Espionage Act and served 10 months in federal prison. U.S. Attorney General Eric Holder later said that he regretted that Rosen had been named as a co-conspirator and he would not criminally prosecute a journalist for publishing classified material.
“At least the current justice department—and obviously there will be a new one—the current Justice Department has very firmly withdrawn from that and revised their policies, taking as a lesson what they did in that case and deciding that was wrong,” Handman said.
Would Sessions adopt the same policy, or would he be willing to prosecute a journalist for publishing classified information? A spokesman for Sessions’ office did not respond to a request for comment.
Trump’s inner circle has shown enthusiasm for using the justice system to crack down on journalists. Earlier this month, former Trump campaign manager Corey Lewandowski said that New York Times executive editor Dean Baquet “should be in jail” because the paper published Trump’s tax returns. There’s zero chance Baquet will be prosecuted for publishing the tax returns—it’s not even clear what federal criminal statute Lewandowski thinks Baquet violated—but that and other statements from prominent Trump surrogates suggest that Trump’s administration will be unapologetic about pushing past the limits established by White House tradition.
If Sessions wanted to indict a reporter under the Espionage Act, he probably could. The law is so broad that it could ensnare virtually any reporter with confidential sources in the government, Abrams said.
“If you have an agenda to punish or inhibit the press, you don’t have to have Pentagon Papers cases, and you don’t have to have Assange or Snowden,” Abrams said. “You could have just the day-by-day work of journalists dealing with people in power and seeing classified documents routinely and writing about them after talking with their sources about them. … The real life of a journalist on a beat with sources, all of that is an area where the ground rules are understood but the law is unclear.”
But it would be tough to win such a case. The Supreme Court has never ruled on whether the Espionage Act applies to journalists, since the government has never tried it before. It’s currently unsettled law.
The Supreme Court has ruled that journalists do not have a First Amendment right to break the law.
“There is no First Amendment defense to criminal conduct,” Babcock said. “The Supreme Court has said many times that the press has no right to violate laws of general application. If you got a speeding law, the speed limit is 65, and a journalist is racing to get to a story and he’s doing 90 and gets pulled over, he can’t say, ‘Hey, I’m a journalist going to cover a fire and I get to go 90.’”
But the Espionage Act is not a speed limit law. There’s a strong case to be made that using the Espionage Act against journalists would violate the First Amendment.
“In [the] example of the Espionage Act, you would say, it’s not applicable because it’s vague,” Babcock said. “It doesn’t say that it covers journalists. You would say that it’s overbroad because it covers activities that are matters of public interest and captures too many people, including journalists, and is therefore unconstitutional for that reason.”
Handman agreed that it would be difficult for the Trump administration to win an Espionage Act case against a journalist.
“You have to have an intent to harm national security, and where your intent is to spread the news and inform the citizenry about what their government is doing, I think it would be very hard to establish a claim under the Espionage Act,” she said. “Not that that means they won’t try. But ultimately, I think it would not be successful.”
There are myriad other ways, besides criminal prosecutions of sources and journalists, that a Trump administration could try to go after the press. Trump could ask the Justice Department and Federal Communications Commission to block media company mergers; he’s already pledged to oppose the planned merger of AT&T and Time Warner. He could also ask the Federal Communications Commission to revoke the licenses that allow broadcast channels like NBC and CBS to broadcast programs over the airwaves.
Republican Rep. Kevin Cramer, a Trump supporter, has already called for a congressional hearing on “network media bias in coverage of the 2016 presidential campaign” and suggested that the FCC could revoke the broadcast licenses of biased media organizations.
One thing that Trump probably wouldn’t be able to do, despite what he has said on the campaign trail, is change libel laws. Trump has promised to “open up our libel laws” to make it easier to successfully sue news organizations, but First Amendment experts say that this would be nearly impossible. The upshot of the landmark 1964 Supreme Court case of New York Times v. Sullivan is that it is very difficult for a public figure to succeed in a libel case against a news organization. What’s more, judges of the conservative stripe Trump is likely to nominate tend to be First Amendment hard-liners themselves.
“The names of people that the Trump campaign released as potential nominees—I’ve looked at them, and they all have a good, strong First Amendment background,” Babcock said.
Trump and his supporters could still exploit existing libel laws; even frivolous libel suits can cost a lot of money for news organizations to defend. Peter Thiel, a billionaire venture capitalist who is part of Trump’s transition committee, secretly bankrolled a number of libel and invasion of privacy lawsuits that effectively bankrupted Gawker Media.
“That is a real danger, because the cost of defending these things is just out of sight,” Babcock said. “Somebody who wants to bring a case knowing they’re not going to win but it’s not so frivolous it’ll get tossed out of court right away—you can fund like five reporters with the expense of successfully defending a libel case. That’s a very big concern.”
But really, Trump’s main threat to the media doesn’t involve libel laws.
“The more we talk about libel and the more the public discussion is about whether he can loosen the libel laws, the more unjustifiably relaxed people in the press could become, because the answer is, he really can’t do that,” Abrams said.
If Trump wants to wage war on the press, he certainly has the tools to do so. He can’t open up the libel laws, but he could still make life very difficult for the reporters covering his administration. For now, all reporters and media lawyers can do is remain vigilant and push back if Trump tries to restrain or punish the press. If the Trump administration takes unprecedented steps to prosecute journalists under the Espionage Act, it will face aggressive legal challenges.
For all his bluster about media bias, it’s not clear that Trump actually wants to waste his time as president fighting an all-out war against media organizations. Most presidents dislike the press, but very few—Nixon is the obvious example—try to use the full power of the federal government to destroy it.
In the end, Trump may decide that he’s better off limiting his attacks on the Fourth Estate to his Twitter account.