The Trump administration spied on journalists. The Biden administration defended it.

On Friday, Devlin Barrett, a reporter at the Washington Post, published an alarming story about two of his current, and one of his former, colleagues: last year, President Trump’s Justice Department obtained phone records belonging to the Post journalists Ellen Nakashima and Greg Miller and the former Post journalist Adam Entous (who is now at the New Yorker). The records in question covered a period between April and July 2017, during which time Nakashima, Miller, and Entous collaborated on stories about Russian interference in the 2016 election. The Justice Department only notified the reporters of its actions last week; it said that it also obtained a court order to get their email records, but did not follow through.

The Justice Department stressed that it was investigating leaks to the reporters, not the reporters themselves, but the clarification, quite rightly, failed to cut it with journalists and press-freedom groups. Cameron Barr, the acting executive editor of the Post, said the paper is “deeply troubled by this use of government power to seek access to the communications of journalists,” and urged the Justice Department to “immediately make clear its reasons for this intrusion into the activities of reporters doing their jobs, an activity protected under the First Amendment.” The American Civil Liberties Union said that “this should never have happened”; elsewhere, Bruce Brown, the executive director of the Reporters Committee for Freedom of the Press, pointed out that the Justice Department’s own guidelines require it, in most circumstances, to notify news organizations before their records are seized—not three years afterward. Brown called on officials to explain why they are “only now notifying the Post, and on what basis the Justice Department decided to forgo the presumption of advance notification.”

From the Existential Issue: A day in the life of news

As Barrett and other observers noted, this wasn’t the first time that we’d heard about Trump’s Justice Department seizing a reporter’s phone records: in February 2018, officials informed Ali Watkins—who had recently joined the New York Times as a law-enforcement reporter and had previously worked at Politico and BuzzFeed, where she, too, covered Russia and the election—that they had obtained years’ worth of records linked to her phone number and two personal email accounts. (As with the Post reporters, officials said they did not surveil the content of any calls or messages.) Officials were investigating James A. Wolfe, an aide to the Senate Intelligence Committee with whom Watkins had been in a long-term romantic relationship, and his contacts with Watkins and other reporters; separately to the investigation, a Customs and Border Protection official reportedly confronted Watkins in person about her relationship with Wolfe and asked for her help in exposing leakers—an approach that Watkins perceived as a threat. Later in 2018, Wolfe pleaded guilty to lying to the FBI about his media contacts, and was sentenced to two months in prison; the Times, for its part, announced a review of Watkins’s past reporting and disclosures, and ultimately assigned her to a new beat. At the time, critics charged that some of the coverage of Watkins, including in the Times, risked centering her personal life at the expense of the chilling federal seizure of her communications. Now, with the Post story, the focus is back on the latter—and the delayed disclosure in this case reminds us that there may still be more we don’t know about Trump’s surveillance of the press.

Not that this is solely a Trump story—his administration may have waged war on journalistic sources, but it didn’t subvert the conduct of prior administrations so much as escalate it. The Obama Justice Department prosecuted nine suspected leakers—more than every prior administration combined—and wasn’t shy about dragging reporters into the process. Officials renewed a Bush-era subpoena targeting James Risen, a veteran national-security reporter, and chased him all the way to the Supreme Court in a bid to compel him to testify against sources; they backed down on the eve of a trial, with Risen prepared to go to jail to defy them, but the wider court battle nonetheless gutted legal protections for journalists in Maryland and Virginia, where many intelligence staffers are based. In 2010, the Justice Department not only obtained phone and email records from—but also tracked the physical movements of—James Rosen, of Fox News; he was named as “an aider, abettor, and/or co-conspirator” in a leak case related to his reporting on CIA intelligence about North Korea, though this accusation, too, was eventually dropped. (Rosen later left Fox amid allegations of inappropriate behavior, then joined Sinclair.) In 2013, meanwhile, the Obama administration obtained records for twenty-one phone lines used by the Associated Press and its reporters as it investigated leaks related to a CIA-thwarted terrorist plot in Yemen. As Ramya Krishnan and Trevor Timm would later report for CJR, officials issued thirty subpoenas in total for phone records, and also considered subpoenaing records from the Post, the Times, and ABC News. (They ultimately decided against this.)

Fast forward to Friday, when—to the consternation of many journalists—Biden’s Justice Department defended the Trump-era move against the Post as, in Barrett’s words, “an investigative step of last resort that was not taken lightly.” We do not yet know of any instances of Biden himself going after journalists’ sources. But he hasn’t pledged explicitly that he won’t, either—and, in its first weeks in office, his administration continued the Trump-era push to extradite and prosecute Julian Assange, the WikiLeaks founder, under the Espionage Act, drawing blowback from a coalition of press-freedom groups who say that the charges against Assange threaten to criminalize various routine acts of journalism. As the Freedom of the Press Foundation noted in January, after Biden was inaugurated, he had “already been lauded for striking a new tone” with the press. “But refraining from insulting and delegitimizing reporters on a daily basis is an incredibly low bar. It is by the actions of its Justice Department and intelligence agencies that the Biden administration should ultimately be judged.”

Sign up for CJR's daily email

On Friday, Politico’s Playbook team called it “surprising” that Biden’s Justice Department would defend the Post seizures. But it wasn’t, really. Risen once told Margaret Sullivan, the Post’s media critic, that he expected the Obama administration to drop the Bush-era subpoena against him, only for officials to escalate matters; as Obama prepared to hand power to Trump, Risen warned, in a Times op-ed, that if Trump decided to jail whistleblowers or spy on journalists, he would have Obama to thank “for bequeathing him such expansive power.” Trump amped up the war on leaks, and his administration, of course, should bear the bulk of the blame in the Post’s case. But it’s not “bothsidesism” to call out loathsome things that both sides are actually doing, and the Biden Justice Department’s statement last week reminds us that we must continue to be vigilant. “This is a thing that happens regardless of who is in power,” Barrett told CNN’s Brian Stelter yesterday. “Obviously there are some Trump-specific things to this example, but this broader institutional push—this desire for control—has existed within the Department of Justice for a while now. And it’s been growing.”

Below, more on Biden and the press:


Other notable stories:

  • As Liz Cheney stands up to Trump’s Big Lie and prepares to lose her position in House GOP leadership because of it, Maureen Dowd, of the Times, argues that it was Cheney’s father, Dick, who “created the template” for Trump with his own Big Lie about Iraq. Liz Cheney’s recent bluntness made her “the toast of MSNBC and CNN, where chatterers praised her as an avatar of the venerable ‘fact-based’ Republican Party decimated by Trump,” Dowd writes. But “from her patronage perch in the State Department during the Bush-Cheney years, she bolstered her father’s trumped-up case for an invasion of Iraq.”
  • On Thursday, Cathy Merrill, the CEO of Washingtonian, published an op-ed in the Post suggesting that if employees don’t return to offices, bosses will be incentivized to classify them as contractors, or even lay them off. Staffers at Washingtonian saw the op-ed as a direct threat; on Friday, they called a publishing strike, and tweeted, “we want our CEO to understand the risks of not valuing our labor.” Merrill later told staff that their status and benefits won’t be changing, and said she was “sorry if the op-ed made it appear like anything else.”
  • In an interview with Bloomberg, Patrick Soon-Shiong, the owner of the LA Times, called for the government to help the newspaper business. “I’m not asking the government to do anything drastic, but they have to step in and find a way to support the viability of this whole industry,” he said. Soon-Shiong didn’t suggest any specifics, though he did also say that tech companies should pay for news. Yueqi Yang and Gerry Smith have more.
  • Alex Samuels, Dhrumil Mehta, and Anna Wiederkehr, of FiveThirtyEight, analyzed media coverage—and its absence—around police killings of Black women. Police officers have killed at least fifty-one Black women since 2015; FiveThirtyEight found that “half of those women have gotten some national media attention in the sixty days surrounding their death… but in most cases, the coverage is limited—five stories or fewer.”
  • On Friday, Heshy Tischler, a right-wing radio host and New York City Council candidate in Brooklyn, pleaded guilty to inciting a mob to attack Jacob Kornbluh, a reporter with Jewish Insider, while he was covering an anti-lockdown demonstration in October. (Kornbluh now works for The Forward.) In a video posted online over the weekend, Tischler denied that he pleaded guilty, and referred to Kornbluh as “a rat” and “a pig.”
  • Ben Smith, the media columnist at the Times, reports on a forthcoming study, from the International Federation of Journalists, on China’s global media footprint. “A new media push accompanied the intense round of Chinese diplomacy in the pandemic,” Smith writes, distributing PPE and vaccines “while scrambling to ensure that things as varied as the pandemic’s origin and China’s diplomacy was portrayed in the best possible light.”
  • Last week, Benjamín Morales Hernández, a journalist in the Mexican state of Sonora, was abducted and murdered. Morales Hernández ran Noticias Xonoidag, a community news site in the town of Sonoyta, on the US-Mexico border; according to the Associated Press, he sometimes covered crime, and had “reportedly complained of threats due to his coverage of local election campaigns.” Drug cartels are also active in the region.
  • In Ireland, the Sunday Independent terminated the contract of Eoghan Harris, a longtime columnist, after he admitted to being one of the people behind an anonymous Twitter account that posted abusive tweets. Among other targets, the account trolled Aoife Moore, a political correspondent for the Irish Examiner, with sexualized and otherwise offensive messages. The Examiner filed a police complaint on Moore’s behalf.
  • And on CJR’s podcast, The Kicker, Kyle Pope, our editor and publisher, spoke with Jessica Bruder, whose book Nomadland inspired the Oscar-winning movie of the same name. “I don’t usually watch the awards shows,” Bruder said, but this year, she was in LA to help two of her sources from the book, who ended up starring in the movie, get ready for the ceremony. “I felt like I was sending my elders off to the prom,” Bruder said.

From the Existential Issue: The deepfake industrial complex

Has America ever needed a media watchdog more than now? Help us by joining CJR today.

Jon Allsop is a freelance journalist. He writes CJR’s newsletter The Media Today. Find him on Twitter @Jon_Allsop.