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Holding the Government Accountable

What to Look For Next: Leak Investigations and More Attacks on the Press

On Tuesday, The New York Times dropped a bomb that has dominated this week’s news cycle. It reported that Trump may have pressured former FBI Director James Comey in February to drop an investigation into Trump’s first national security advisor, Michael Flynn. Last week, Trump fired Comey with many wondering if Comey was actually canned because of ongoing investigations related to Russia interference in last year’s election that could affect Trump, including the Flynn probe.

But buried in The New York Times’s story is another troubling allegation. According to the story, Trump wanted Comey to imprison reporters:

Alone in the Oval Office, Mr. Trump began the discussion by condemning leaks to the news media, saying that Mr. Comey should consider putting reporters in prison for publishing classified information, according to one of Mr. Comey’s associates.

Trump could build on actions that have been taken over the last two administrations that have threatened the press’s and the public’s First Amendment rights. The Bush administration jailed then-New York Times reporter Judith Miller for refusing to name a confidential source in the midst of an investigation by Special Counsel Patrick Fitzgerald to learn who outed CIA agent Valerie Plame. The Obama administration subpoenaed Associated Press phone records, named Fox News reporter James Rosen a “criminal co-conspirator” in an Espionage Act case (although it did not prosecute him), and came close to jailingNew York Times reporter Jim Risen.

There’s a reason the Founding Fathers put freedom of the press in the First Amendment to the Constitution: the press, which closely scrutinizes those in power, can easily anger the highest levels of government. The press should be aggressive in covering the powerful, especially when there is credible evidence of wrongdoing. It is an important line of defense in preventing tyranny and keeping the public well informed: a necessary ingredient in our democracy.

On the campaign trail, Trump said he wanted to “open up our libel laws” so news organizations will be deterred from writing critical stories he views as false. But that would conflict with our core values. As the Supreme Court ruled in the landmark 1964 libel case, New York Times Co. v. Sullivan, the issue of libel has to be considered “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” (emphasis added)

While it’s unlikely Trump will change libel laws (he cannot do so on his own), it will be wise to monitor any Justice Department investigations and other administration actions that could threaten the media’s freedom to report important stories.

The main focus of attack will likely not be reporters, but rather government employees who make disclosures to the press. These individuals are the most vulnerable. In February, Trump told reporters, “We're going to find the leakers and they're going to pay a big price."

“I've actually called the Justice Department to look into the leaks,” Trump said. “I mean, the leaks are real.”

In March, Trump tweeted, ”must find leaker now!“ in response to stories about the FBI investigation into possible Trump campaign-Russia collusion.

The Justice Department will play a key role. Will it, as it did under President Obama, aggressively pursue government employees who made disclosures to the press even if those disclosures exposed government wrongdoing? Will it pursue government employees even if their disclosures did not include any classified information?

During the Obama administration, POGO called for a public interest balancing test when the Justice Department considers prosecuting government employees for unauthorized disclosures of classified or sensitive information when they blow the whistle on improper activity. No one should uncritically condone or celebrate leaks of classified or sensitive information. But sometimes disclosure of this material is the only way to learn about serious problems. Our position on this balancing test is unchanged. While ideally it would be baked into statutory law, unofficially, the Justice Department can use its prosecutorial discretion to avoid cracking down on legitimate whistleblowers.

But even without prosecuting, leak investigations by the FBI or other agencies can be intimidating and can chill whistleblowing. And government employees can face other penalties aside from criminal prosecution, such as loss of their jobs.

There is a role for the legislative branch. Congress needs the press and government insiders to help it conduct proper oversight. And the press needs sources on the inside to report the real stories, not the incomplete and sometimes misleading ones that those in power want you to hear.

Congress needs to step up and push back against attempts by the administration to crack down on patriotic employees. We’ve seen this before in past administrations: the executive branch, when confronted with public revelations about its own potential wrongdoing, tries to change the focus to those who exposed the problems.

Through exercise of its oversight powers and forcefully standing on principles rather than on politics, Congress can help us learn the full story, shield legitimate whistleblowers, and lead the charge to protect our system of government and the First Amendment.