Reports that fired FBI Director James Comey kept a record of his conversations with President Donald Trump dominate the news, fueling calls for deeper inquiry into any evidence that Trump may have interfered with an FBI investigation into his own campaign.
One detail from Comey’s reported memo has been inadequately examined.
According to New York Times reporting on the memo, Comey wrote that Trump asked him to shut down an investigation into fired National Security Director Michael Flynn. But the president also urged Comey to try to put journalists in prison for publishing stories based on classified leaks, according to the Times. The memo records that Trump asked everyone else to leave the room before making his plea for jailing reporters, according to the source who read the memo to Times reporters but did not share copies with them.
Those reports raise grave concerns about the government’s relationship with the media, civil liberties groups and non-profits that advocate for press freedom said — in part because Trump’s proposal would test the Constitution in new ways with uncertain outcomes.
“Scary. Scary,” Committee to Protect Journalists executive director Joel Simon said in an interview. “Trump says all sorts of terrible things about journalists but when he says them publicly there’s a political rationale. But this was a private moment. If he said that in a private moment, and that’s what he really believes, then that’s very scary.”
Simon was already alarmed by the administration’s approach to press freedom before the Comey memo reports, he said. “But if this is a thermostat, somebody just turned it up a couple degrees.”
Reports on Comey’s notes have not revealed what, if any, response he offered to Trump’s purported one-on-one request for prosecuting journalists.
But if Trump were able to get the government engine churning in favor of prosecuting publishers and reporters, the American Civil Liberties Union’s Ben Wizner said, the administration would be breaking centuries-old precedent.
“Never in the history of this country has a reporter or publisher been prosecuted for publishing truthful information, classified or not,” Wizner said. “It’s fair to say Trump recommended dispensing with over 200 years of tradition in this country.”
Tradition versus law
The nation’s commitment to the principle that it’s more important to protect a free press than to punish the occasional harmful publication is, in Columbia Law School professor David Pozen’s words, “a matter of practice and norms” rather than statute or judicial precedent.
Even when the Supreme Court found that the Vietnam-era Pentagon Papers leaks were protected from censorship, Pozen said, “a majority of Justices held open the possibility that a journalist could be prosecuted after the fact. So that legal threat has been there for a long time time.” The high court raised, but did not resolve, the Constitutional questions surrounding the type of prosecutions Trump reportedly sought, he said.
“But I don’t think that makes them any less resilient,” Pozen said. “The norm is very strong by now that journalists shouldn’t be prosecuted for going about their ordinary business.”
Trump is the sort of figure who can trouble even longstanding and deeply-held norms, however.
Should Trump truly push to shake the norm that reporters and publishers are not treated as criminal for publishing unauthorized leaks, he might end up inadvertently strengthening a principle that is currently informal.
“One way in which norms can harden is if they’re tested and then in response they become codified,” Pozen said. “No court has had to rule on the First Amendment questions that would be raised by prosecuting journalists for their publishing behaviors. If that were to happen, it’s conceivable we’d end up with actually a more robust form of protections. President Trump’s instinct to go after the press could well backfire legally.”
In pursuing journalists as well as leakers, Trump would be rolling the dice in pursuit of his avowed desire to make it easier to punish the press in court. Even if he doesn’t buy Pozen’s warning about a backfire at the bench, Trump has even simpler reasons not to take this tack. If he is frustrated by leaks, Pozen said, that’s an administrative issue, not a legal one — and bureaucracies long ago figured out how to keep suspected leaky parties out of sensitive meetings.
But it is the president himself who is loose-lipped. He can’t very well freeze himself out of security briefings and high-level meetings.
An incautious White House
“Typically it’s been thought that the White House, as an institution, was a voice of caution not zealousness” on leak investigations, said Pozen. The push to prosecute usually comes from intelligence agencies, with the White House and other institutional actors applying the brakes.
“Here, it seems the opposite. Which, of course, reflects Trump’s relationship to the media, and the topsy-turvy times we’re in in general,” Pozen said.
It likely also reflects a key difference between the type of material that’s oozing out of Trump’s administration and the sort of sensitive information that reporters and publishers have typically tip-toed around. The ethical obligations journalists generally endorse around sensitive leaked information, CPJ’s Simon said, are predicated on national security concerns. But while it can be harmful to publish classified information in those circumstances, publicly sharing the leaks that have enraged Trump is consistent with the national interest.
With matters of national security, “many publications have conversations with officials to determine what their concerns might be,” said Simon. “But if it’s just politics or political embarrassment, and the concern is about what powerful people might not want reported, then the default is to publish.”