Important lessons from Obama’s mistakes in Trump’s new crackdown on leaks

Journalists were justifiably outraged last week at the news that President Trump’s Justice Department had seized a year’s worth of phone and email records of New York Times reporter Ali Watkins as part of yet another leak investigation. It is an escalation of the already disturbing crackdown on whistleblowers, and therefore on the press, undertaken by the Trump administration.

And there are likely more cases to come. With three other, unidentified reporters mentioned in court documents related to the leak case Watkins is ensnared in, and dozens of other similar investigations going on as we speak, it’s anyone’s guess how many journalists the Trump administration is currently spying on.

While Trump and Attorney General Jeff Sessions are undoubtedly responsible for this brazen attack on press freedom, the groundwork for the current moment came from decisions by the Obama administration.

The Washington Post’s Margaret Sullivan wrote an excellent column Friday on how Obama left the blueprint for Trump to engage in these chilling investigations. Sullivan explains that Obama’s Justice Department—led by former Attorney General Eric Holder—subpoenaed the phone records from 20 Associated Press phones lines in one leak investigation. In another, the Justice Department read a Fox News reporter’s email while calling him a co-conspirator in court documents. And, most famously, it subpoenaed one of the greatest living reporters in America, James Risen, and almost forced him into prison for protecting his source.

RELATED: DOJ seizure of Times reporter’s data raises press freedom concerns

There are two other incidents during the Obama administration I would add to her account, both of which were just as consequential for reporters attempting to hold the government accountable.

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The first occurred during the Risen case. The Obama administration eventually dropped its subpoena of Risen on the eve of his court appearance in early 2015, after years of pursuing him. But it wasn’t some magnanimous gesture by the Justice Department. The larger damage to press freedom had already been done: The Justice Department dropped the subpoena after they had already convinced the Fourth Circuit Court of Appeals to completely gut reporter’s privilege, an important protection for journalists that that had prevented them from being forced to testify in previous cases.

The alleged source who was charged under the Espionage Act for leaking, Jeffrey Sterling, was found guilty without Risen’s testimony—only because so much surveillance had already been done on him and Risen in secret.

Risen had previously won his case by invoking reporter’s privilege at the district court level twice. Both during the grand jury phrase of the leak investigation, and during trial, the presiding judge ruled Risen was protected by a common law reporter’s privilege and he would not have to testify. But the Justice Department appealed.

 

The Justice Department argued that what Risen was doing in protecting his source was essentially akin to a journalist receiving drugs from a source.

 

During the appeals court case, as the Huffington Post reported at the time, the Justice Department argued to a three-judge panel on the Fourth Circuit Court of Appeals that what Risen was doing in protecting his source was essentially akin to a journalist receiving drugs from a source. The court, in a divided opinion, ultimately sided with the Justice Department, effectively killing the privilege for all journalists that had protected Risen up until that point.

The Fourth Circuit includes Virginia and Maryland, where most intelligence employees live and work. The decision destroyed an important protection reporters had in one of the most important places to have it. Holder has previously expressed regret for his pursuit of (the similarly named) Fox News reporter James Rosen and the Associated Press surveillance, and his supporters point to the fact that he strengthened the Justice Department’s “media guidelines” after this incident. But as far as I’m aware he has never publicly express regret for his decision to appeal the Risen case and destroy reporter’s privilege in the Fourth Circuit.

Reporters covering intelligence agencies under Trump now have to work without that vital protection.if the Trump administration decides to pursue a reporter for his or her testimony in the future, there will be little anyone can do to stop them, as evidenced by the fact Sessions can violate their current media guidelines without any legal repercussions.

The second, which is perhaps the most underrated event concerning press freedom under Obama, actually happened very early on in the administration, before any of the controversial leak cases came to light. In the summer of 2009, the Democratic-controlled Congress had a strong bipartisan shield bill—that would codify strong reporter’s privilege protections into federal law—ready to be passed. Then, the White House scuttled it.

RELATED: Barack Obama’s press freedom legacy

Prior to his presidency, Senator Obama was actually a co-sponsor of virtually the same bill when he was in Congress. But once in the White House, Obama pulled a 180. As the Judiciary Committee was about to pass the bill, the White House publicly stated they would refuse to support it unless a giant national security exception was added, which would limit judicial review on cases involving national security and provide extreme deference to prosecutors if reporters attempted to invoke it.

Since almost all federal leak cases involve national security, the exception would have rendered the bill meaningless. In fact, it may have made reporters easier to subpoena for information.

The bill’s authors, both a Republican and Democrat, were taken aback by Obama’s sudden U-turn. Here’s how the bill’s authors, Senator Arlen Specter  and Senator Chuck Schumer, responded at the time, as reported by the  Times:

Mr. Specter called the proposed changes “totally unacceptable,” saying they would gut meaningful judicial review. And in a statement, Mr. Schumer said: “The White House’s opposition to the fundamental essence of this bill is an unexpected and significant setback. It will make it hard to pass this legislation.”

At that point, the bill was good as dead. It never got to the floor for a vote. Soon after, the public would learn about the first of many leak cases the Obama administration would bring—more than all previous administrations combined.

If the original shield bill (again, that Senator Obama had once co-sponsored) had been passed, it may have prevented at least some of the press freedom abuses that later happened during the Obama era. And most importantly for journalists working now, it could have helped prevent the abuses, such as the Watkins case, that are occurring under Trump.

This shouldn’t pardon Trump and Sessions; they clearly deserve blame and condemnation for this current leak hysteria that will surely send a chill down the spine of every source and reporter in Washington, DC. Obama’s role, though, in laying the groundwork is an important lesson in why it’s important for Democrats (or anyone) to make decisions based on principle, not based who is currently in the White House.

ICYMI: Seymour Hersh on spies, state secrets, and the stories he doesn’t tell

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Trevor Timm is the executive director of Freedom of the Press Foundation, a non-profit organization that supports and defends journalism dedicated to transparency and accountability. He is also a twice-weekly columnist for the Guardian, where he writes about privacy, national security, and the media.