Mimesis Law
29 March 2017

Surprise! Trump Has Obama’s Victories Against The Press At His Disposal

December 15, 2016 (Fault Lines) — This year, I’ve used considerable space here at Fault Lines “trenchsplaining” how the President-Elect’s ambitious goals for immigration policy and deportation are, by and large, devoid of any logistical support. These posts were not meant to create a false sense of security, but rather to inform how such proposals were either pie in the sky or could not be worse than Obama’s record-shattering performance when it came to detaining and deporting non-citizens.

Unfortunately, when it comes to freedom of the press, Trump is in a much better position to do considerable damage should he emulate Obama’s strategies on that front. This goes beyond Trump’s rhetoric about expanding libel laws, which would have a chilling effect on free speech and reporting by going after people’s pockets. It’s about placing people under threat of imprisonment by using the ominous sounding “Espionage Act” of 1917 to prosecute sources and whistleblowers, which Obama did while breaking yet another record when it comes to being a “law and order” president. As reported this week by the Freedom of the Press Foundation:

 Starting in 2009, at least nine cases were brought under Attorney General Holder, and national security journalists have described an unprecedented ‘chill’ to their investigative reporting ever since.

And it’s not just sources that will have to be worried about Espionage Act prosecutions under the Trump administration; it’s journalists as well. While we believe the law is patently unconstitutional when applied to the publishers of secret information, at least three grand juries have been empaneled in the last 70 years with the intention of prosecuting journalists under the law. While no indictment has followed, there’s nothing stopping the Trump administration from attempting to be the first.

Under the Obama administration, the Justice Department took the unprecedented step of naming Fox News reporter James Rosen (different than James Risen) as an unindicted “co-conspirator” to Espionage Act charges in another leak case.

(Emphasis added, see directly below why.)

It was in 2009 that the Obama Administration chose to renew the subpoena issued by the previous administration against James Risen with regards to a chapter in one of his books regardng his government source for a story on a colossal (but not necessarily uncommon) CIA screw up, this time involving Iran’s nuclear program. Guess it didn’t take long for all that hope for change to start fading away.

Risen fought valiantly and beat the government at the U.S. District Court level, but the DOJ persisted and eventually prevailed before the 4th Circuit Court of Appeals. This meant not only that Risen had to testify in the federal trial of ex-CIA agent Jeffery Sterling on pain of imprisonment, but the Obama administration created a government-friendly precedent in the  circuit, which has jurisdiction over where most of national security reporters make their keep. From the court’s opinion, which rejected Risen’s claim of First Amendment testimonial privilege under Branzburg v. Hayes:

There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source.

The First Amendment claim in Branzburg was grounded in the same argument offered by Risen — that the absence of such a qualified privilege would chill the future newsgathering abilities of the press, to the detriment of the free flow of information to the public. And the Branzburg claim, too, was supported by affidavits and amicus curiae memoranda from journalists claiming that their news sources and news reporting would be adversely impacted if reporters were required to testify about confidential relationships. However, the Branzburg Court rejected that rationale as inappropriate in criminal proceedings.”

Now, imagine who now gets to have this extraordinary legal bludgeon at his administration’s disposal? He, who according to many, will bring about the apocalypse. It’s the perfect scenario should anyone ever need to draft a primer on Chesterton’s Fence.

When all this was going down, there were the few, the proud who stood up for Risen on principle. But they were the minority, drowned out by the loud cheers coming from the votaries of that “progressive” administration, which could do no wrong. There were no Niagaras of tears at cry-ins, no empty threats of mass exodus, and no moronic “political awakenings” while the freedom of the press took a big hit.

Of course, there were those on the “right” side of the governmental fence who were spared the wrath of the Espionage Act, who were given the “star” treatment (pun intended), and in a hilarious twist of irony, almost ended up sitting in Trump’s table. Others who committed smaller peccadilloes were not so lucky and ended up as guests of the U.S. Bureau of Prisons.  As usual, it was the intellectual honest fellows who called for an investigation of those at the top, regardless of any political leanings.

Yes, these selective prosecutions involved blatant hypocrisy on part of the Obama administration, and it was government business as usual. But if anything, these sordid episodes should remind everyone of how the legal bludgeons used by your “progressive good guys” can be also used by future administrations, even if they’re not headed by “your” president of choice.

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    […] Actually, that first sentence is true only if one sets aside the Obama Administration’s record of prosecuting whistleblowers (which eroded at the First Amendment’s testimonial privilege in crucial jurisdictions) and its […]