I have been shouting into the wind for 15 years that the war on whistleblowers and government sources – started under Barack Obama and continued by Presidents Trump and Biden – was a backdoor war on journalists. Donald Trump has now brought the battle to the front door and his administration is using a battering ram to get inside.
Just ahead of his 100-day mark in office, the Trump administration set off two major earthquakes that shook the media landscape and threatened the foundation of a free press. First, Attorney General Pam Bondi announced that federal authorities may once again seek reporters’ phone records and compel their testimony in leak investigations. Second, Bondi announced that she plans to pursue cases “where a Government employee discloses sensitive information for the purposes of personal enrichment and undermining our foreign policy, national security and government effectiveness.” She claimed that “this conduct could properly be characterized as treasonous.”
When the government first started using the Espionage Act to go after “leakers” (most of whom were whistleblowers), in every single one of the cases, reporters and news outlets featured prominently in the indictments. But there was always an unspoken understanding that the government would not go after reporters directly. When the government first tried to criminalize leaking in this century, the case against NSA whistleblower Thomas Drake imploded and the judge excoriated the government:
“We’re not going down the path of having reporters called to the witness stand because I’m not inclined to incarcerate a reporter who asserts a privilege . . . That’s the last thing we need right now…. To the extent that we even think about calling a reporter to the witness stand, I think we’re really going down a deep, dark hole.”
But that was nearly 15 years ago and Trump has shown himself more than willing to go down deep, dark holes, from soliciting foreign interference in the 2020 election to inciting an insurrection to summarily deporting U.S. children without due process. Indeed, past examples of the government imperiling journalists are sufficiently chilling before we ever reach Trump and Bondi’s latest assaults on the First Amendment.
The Nixon administration convened a grand jury to indict New York Times reporters Neil and Susan Sheehan for obtaining and copying the Pentagon Papers from Daniel Ellsberg. In 2005, reporter Judith Miller was jailed for 85 days for refusing to reveal her source in the Valerie Plame ordeal. In the 2013 leak case against State Department employee Stephen Kim, the government named a Fox News reporter as a co-conspirator. When the government subpoenaed reporter James Risen to testify about the identity of his anonymous source, he faced prison for contempt of court. And in 2024, Trump’s prosecution of Wikileaks founder Julian Assange became the first successful prosecution of a publisher under the Espionage Act.
During the Biden administration, the Justice Department enacted revised media guidelines, which contained protections such as requiring senior-level Justice Department approvals before seeking court orders for certain information. It also curbed the use of “compulsory process” – meaning search warrants, subpoenas, etc. to seize reporters’ records – except in limited circumstances, for example, if the information is imperative to prevent a serious crime or if a journalist is the criminal target.
But an internal Justice Department memo from Bondi’s office claims that dropping the reporter record policy is necessary to prevent the release of not just “classified” information, but “privileged and other sensitive information” — a much broader, undefined category that could expose reporters to law enforcement scrutiny and process for typical news-gathering activity, such as the protection of sources.
Bondi does not seem to understand how the government classification system works, which by its very nature protects sensitive information. The three main levels of classification are confidential, secret, and top secret. The desired degree of secrecy about such information is known as its “sensitivity,” which is based on a calculation of its potential damage to national security if released. Nor does Bondi seem to understand that information designated as “classified” does not necessarily make it related to the “national defense” – the definition in the Espionage Act, which is the law used in the majority of leak prosecutions.
Bondi also seems to misunderstand that “privilege” is a rule of evidence – not a classification category – which protects communications within certain relationships from compelled disclosure in a court proceeding (even if it may be relevant). It is shocking that the Attorney General doesn’t appreciate this distinction. It’s basic law school fare.
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Under the reporter regime Trump wants to return to, investigators could secretly obtain journalists’ records through a court order without the journalists’ knowledge. News outlets reported in 2021 that prosecutors aggressively pursued communications data from reporters in an effort to identify their sources. A top lawyer at the New York Times revealed that both the Trump and Biden administrations tried to obtain the email logs of four of its reporters. A CNN reporter and reporters from the Washington Post and other outlets reported similar efforts.
Compounding all of this, while most states have reporter shield laws covering the right of news reporters to refuse to testify about information and sources of information obtained during the news-gathering process, there is no such federal law. The bipartisan “Protect Reporters from Exploitative State Spying Act” (PRESS Act), a federal shield law, could have helped cure this problem. It passed the House unanimously, but in November, Trump instructed congressional Republicans to block its passage, which they obediently did.
The most frightening part of this all, however, is Bondi’s bald assertion about prosecuting government employees for treason – a crime punishable by death – if they disclose undefined “sensitive” information for undefined “profit” (does that include getting a tv gig at Fox?) and undermine government effectiveness. That could conceivably include discussing DOGE’s myriad blunders or revealing the United States’ mistakes in deporting migrants.
Bondi has now joined the sisterhood of the unraveling rants, echoing DNI’s Tulsi Gabbard and DHS’s Kristi Noem in failing to realize that the First Amendment actually elevates political speech above all other forms of individual expression, and that the most offensive speech is the speech most protected from government action. Perhaps they were too busy being mean girls in middle school to learn that “distrust in government” was baked into the United States, a nation founded on a rebellion against centralized, executive power. We fought a revolution against a monarch. They can nervously chuckle at the insecure, attention-starved class clown all they want, but it doesn't invert the paradigm by which the people control the government.Attempting to turn it the other way around is real treason.
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