Below is my column in USA Today on the controversy involving the acquisition of metadata evidence on members of Congress and the media in the leak investigation launched during the Trump Administration. We recently discussed the questionable reporting by the New York Times concerning the lead prosecutor, but far more serious questions remain if we are going to reach any resolution on protecting journalists, including the question of what is a journalist.
Here is the column:
The disclosure of the Justice Department’s targeting of members of Congress and journalists with secret subpoenas has caused a firestorm in Washington. The targeting of recipients of this information in Congress and in the media constitutes direct attacks on Article I and the First Amendment of the Constitution. This will be one of the topics of a meeting convened by Attorney General Merrick Garland with media officials this week. It will not be the first time that such a meeting has been held in part as there is no resolution on the meaning of the key term for any protection. As another administration seeks to combat the targeting of journalists, the question remains: what is a journalist?
There are still many questions that need to be answered about the demand for companies like Apple to provide “metadata” related to journalists and members of Congress. There are many reasons to investigate the grand jury subpoenas used in the investigation and how to better protect not only journalists and politicians, but the general public. Grand jury subpoenas can be obtained without probable cause that the subject has committed a crime, and companies have been gagged from telling clients their information has been passed to the Justice Department. This leaves little protection against abuse beyond self-regulation.
Reverse engineering leaks
However, if we are to make progress, it will require both clarity and precision in our public debate. For example, the problem is not that an investigation into the leaks revealed emails or other information related to journalists or members of Congress. Few people dispute that the federal government has a legitimate interest, if not an obligation, to investigate the leak of classified or sensitive information. These leaks are criminal acts under federal law.
The real concern is whether the investigation targeted the recipients of these leaks, rather than the leakers themselves. Prosecutors and investigators are often tempted to reverse engineer a leak, starting with receiving the information and reworking to identify the senders. The government often knows the recipients just by looking at the signature on the items. It is much easier for the investigation and much more damaging for the Constitution.
This is not the first such assault on the media in recent years. During the Obama administration, Eric Holder’s Justice Department ordered a full investigation targeting then Fox News reporter James Rosen. Rosen has been investigated for simply speaking with a source in a story involving classified information. Even the phone numbers of Rosen’s parents were not spared in an operation that was said to have been approved by Holder. The Justice Department has evaded its own policies by branding Rosen a “co-conspirator” in the crime of information leakage.
Garland will now seek to assure the news media, once again, that the Justice Department will not target its communications or contacts. However, he can’t promise not to capture this information when targeting potential leaks – unless he wants to promise to end the leak investigations altogether.
While Congress is (rightly) asking for answers on the targeting of its members and journalists, it is also calling for a new investigation into the leaks after the billionaires’ tax records were released. The leak of these tax records is a federal crime, and the leak would likely appear to have originated from a hack of IRS records or an actual IRS employee or contractor. If the Justice Department finds a suspect, tracing that person’s calls or data may reveal contacts in the media, public interest groups, and other areas.
The Pro Publica article was a classic use of a leak. If this was an IRS employee, it was someone who believed they were acting in the public interest as a whistleblower. He was also someone who was committing a federal crime.
Regardless of the source of the tax information, the one thing the Justice Department shouldn’t do is reverse engineer by targeting Pro Publica staff. When the media relied on the Edward Snowden leaks, it was done to denounce the unconstitutional surveillance of citizens during the Obama administration. This has brought about radical changes. However, no one has sought to prosecute the New York Times reporters as editors, and few have questioned the legitimate effort to stop Snowden as responsible for the leak.
What is a journalist?
In his testimony to Congress, Garland said he intended to create new protections for the media to allow “journalists to continue their work by exposing government wrongdoing and mistakes.” It’s part of how you trust government, having that transparency. “
But what is a journalist? Does it include bloggers or citizen journalists?
It is generally accepted that this is a case of investigative journalism. After all, Pro Publica has won six Pulitzer Prizes and stands as a nonprofit investigative group committed to exposing “abuse of power and betrayals of public trust by government, business and other institutions, using the moral force of investigative journalism to spur reform through the sustained exposure of wrongdoing.”
It sounds a bit familiar. WikiLeaks was founded as a non-profit organization “to bring important news and information to the public … to publish original sources alongside our reporting so that readers and historians can see evidence for the truth.” In 2013, WikiLeaks was declared by the International Federation of Journalists as a “new generation of media organizations” that “provide important opportunities for media organizations” through the publication of such non-public information.
If Garland is to implement protections for the media in the use of leaked material, he will face a prosecution against WikiLeaks founder Julian Assange by the DOJ. The Justice Department is still fighting to extradite Assange. He uses the same tactics used in the Rosen case by treating Assange not as a journalist but as a criminal co-conspirator. The DOJ insists that Assange played an active role in his correspondence and advice with the hacker. Still, Assange wouldn’t be the first journalist to work with a whistleblower who prospectively acquires or continues to acquire non-public information.
I have already written about the Assange case as potentially the most important press freedom case in 300 years. (For full disclosure, I also advised Julian Assange’s legal team in England on our criminal justice system and protections for the free press under the Constitution.)
Both Pro Publica and WikiLeaks could claim that these disclosures are in the public interest. Pro Publica wanted to denounce an unfair tax system. WikiLeaks wanted to expose how public figures lied to the public on topics ranging from foreign wars to campaign issues.
The rights of free speech and the free press require clear lines to flourish. For the free press, a clear line is to ban reverse engineering in leak investigations and targeting of publishers or recipients of information in the media or Congress. Another is to require a higher presentation (and higher clearance) for any search of journalists’ files. This, however, will inevitably lead us to questions that the government and, frankly, some media have avoided for years. What is a journalist, and what to do with Julian Assange?
This is why there is a lot to do in light of the current scandal and possibly a lot to undo.
Jonathan Turley is Shapiro Professor of Public Interest Law at George Washington University and a member of the USA TODAY Contributors Council. Follow him on Twitter: @JonathanTurley
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