The disclosure of the Justice Department’s targeting of members of Congress and reporters with secret subpoenas has caused a firestorm in Washington. The targeting of the recipients of such information in Congress and the news media constitute direct assaults on Article I and The First Amendment of the Constitution. That will be one of the subjects in a meeting called by Attorney General Merrick Garland with media executives this week. It will not be the first time such a meeting has been held in part because there is no resolution on the meaning of the key term for any protection. As yet another administration seeks to address the targeting of reporters, the question remains: What is a journalist?
There are still many questions that need to be answered about the demand that companies like Apple turn over “metadata” connected with reporters and members of Congress. There is ample reason to investigate the grand jury subpoenas used in the investigation and how to better protect not just reporters and politicians but the public at large. Grand jury subpoenas can be acquired without probable cause that the subject committed a crime, and the companies were gagged from telling their customers that their information was turned over to the Justice Department.That leaves few protections from abuse beyond self-regulation.
Reverse engineering leaks
If we are going to make any progress, however, it will require both clarity and accuracy in our public debate. For example, the problem is not that a leak investigation revealed emails or other information linked to reporters or members of Congress. Few people disagree that the federal government has a legitimate interest, indeed an obligation, to investigate the leaking of classified or sensitive information.Those leaks are criminal acts under federal law.
The real concern is whether the investigation targeted the recipients of such leaks, rather than the leakers themselves. Prosecutors and investigators are often tempted to reverse engineer leaks, starting with the receipt of information and working back to identify the senders. The government often knows the recipients by simply looking at the byline on articles. That is far easier for the investigation and far more damaging for the Constitution.
This is not the first such assault on the media in recent years. During the Obama administration, the Justice Department under Eric Holder ordered a full investigation targeting then-Fox News reporter James Rosen. Rosen was investigated for simply speaking with a source in a story involving classified information. Even Rosen’s parents telephone information wasn’t spared in an operation reportedly approved by Holder. The Justice Department evaded its own policies by classifying Rosen as a “co-conspirator” to the crime of leaking information.
Garland will now seek to assure the news media, yet again, that the Justice Department will not target its communications or contacts. However, he cannot promise not to seize such information as a result of targeting potential leakers – unless he wants to promise to end leak investigations entirely.
While Congress is (correctly) demanding answers on the targeting of its members and journalists, it is also demandinga new leak investigation after the publication of the tax records of billionaires. The leaking of such tax records is a federal felony, and the leak would seem most likely to have come from either a hacking of IRS records or from an actual IRS employee or contractor. If the Justice Department finds a suspect, the search of that person’s calls or data may reveal contacts in the news media, public interest groups and other areas.
The Pro Publica article was a classic use of a leak. If this was an IRS employee, it was someone who believed that they were acting in the public interest as a whistleblower. It was also someone who was committing a federal felony.
Subpoena for USA TODAY records:Chilling reminder of fragile freedom of the press
Regardless of the source of the tax information, the one thing that the Justice Department should not do is reverse engineer by targeting the staff at Pro Publica. When the news media relied on the leaks of Edward Snowden, it was done to expose unconstitutional surveillance of citizens during the Obama administration.It resulted in sweeping changes. However, no one sought the prosecution of reporters at The New York Times as publishers, and few questioned the legitimate effort to arrest Snowden as the leaker.
What is a journalist?
In his testimony before Congress, Garland stressed that he intends to create new protections for the media to allow “journalists to go about their work disclosing wrongdoing and error in the government. That is part of how you have faith in the government, by having that transparency.”
But what is a journalist? Does it include bloggers or citizen journalists?
There is general agreement that this is a case of investigative journalism. After all, Pro Publica has won six Pulitzer Prizes and bills itself as a nonprofit investigatory group committed to exposing “abuses of power and betrayals of the public trust by government, business, and other institutions, using the moral force of investigative journalism to spur reform through the sustained spotlighting of wrongdoing.”
That sounds a tad familiar. WikiLeaks was founded as a nonprofit “to bring important news and information to the public … to publish original source material alongside our news stories so readers and historians alike can see evidence of the truth.” In 2013, WikiLeaks was declared by the International Federation of Journalists to be a “new breed of media organization” that “offers important opportunities for media organizations” through the publication of such nonpublic information.
If Garland is going to implement protections for the media in the use of leaked material, he will have to address the continued prosecution of WikiLeaks founder Julian Assange by the DOJ. The Justice Department is still fighting to extradite Assange. It is using the same tactic that was used in the Rosen case by treating Assange not as a journalist but as a criminal co-conspirator. DOJ insists that Assange played an active role in his correspondence with and advice to the hacker. Yet, Assange would not be the first journalist to work with a whistleblower who is prospectively or continuing to acquire nonpublic information.
Freedom of the press:Justice subpoena’s are bad enough, but government has other ways to go after journalists
I have previously written about the Assange case as potentially the most important press freedom case in 300 years. (For full disclosure, I also advised the legal team of Julian Assange in England on our criminal justice system and the free press protections under the Constitution.)
Both Pro Publica and WikiLeaks could claim that these disclosures serve the public interest. Pro Publica wanted to expose an unfair tax system. WikiLeaks wanted to expose how public figures were lying to the public on subjects ranging from foreign wars to campaign issues.
Both the rights of free speech and the free press require bright lines to flourish. For the free press, one bright line is to bar reverse engineering in leak investigations and the targeting of publishers or recipients of information in the media or Congress. Another is to require a higher showing (and higher authorization) for any searches of the records of journalists. That, however, will take us inevitably to the questions that the government and frankly some in the media have avoided for years. What is a journalist, and what to do with Julian Assange?
That is why there is much to be done in light of the current scandal and perhaps much to be undone.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors. Follow him on Twitter: @JonathanTurley
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