The Trump administration's Department of Justice (DOJ) secretly obtained the phone and email records of a CNN journalist last year, the news network reported last night after receiving a notification from the DOJ. This disclosure follows similar news in just the past three weeks of a subpoena served against a trio of Washington Post reporters who had produced a story documenting Russian interference in the 2016 presidential election, and a subpoena served under gag order for the identity of an anonymous online critic of Trump ally Representative Devin Nunes.
Although certain details have yet to emerge, taken together these subpoenas reveal an administration and a Department of Justice willing to use the surveillance power of the state against its perceived domestic "opponents," ranging from whistleblowers to reporters to online commenters. It also underscores the willingness of the federal government to support the outrageous censorship and intimidation campaign launched by Nunes through a battery of frivolous litigation.
Subpoenas that target or affect members of the media are supposed to be subject to a heightened set of guidelines, in recognition of the fact that they touch on activity that is at the core of the First Amendment's protections. When the Department of Justice revealed its efforts against Washington Post journalists, Freedom of the Press Foundation was joined by other civil liberties groups in demanding answers on whether those guidelines were followed. Now that a second fact pattern has emerged so similar to the first — a subpoena issued in 2020 seemingly in the service of investigating a leak years earlier, with no notice to the media organization or explanation — the urgency of those questions has only increased.
Senator Ron Wyden and Representative Jamie Raskin have made a proposal this week that seems like an essential development in light of the two journalist subpoenas revealed so far this month. In a letter to the Department of Justice, Wyden and Raskin call for a revision to the media guidelines to forbid the use of subpoenas against the communications of journalists for the purposes of leak investigations. From their letter:
The Biden Administration has the opportunity to voluntarily leave behind the thuggish and Orwellian abuses of power of the last administration, and stand up as a world leader for press freedoms. To that end, we urge you to revise DOJ’s guidelines for investigations of journalists. Simply put, the government should not collect journalists’ communications records unless it’s investigating them for a crime or as part of an investigation into foreign espionage, in which case it should get a warrant.
The lawmakers also plan to introduce a federal journalist shield law that would provide legislative teeth to the guidelines. Freedom of the Press Foundation wholeheartedly supports both proposals.
The “war on whistleblowers” that began in earnest under President Obama and escalated through four years of Trump has been both profoundly ineffective and wildly out of line with the news reporting values that the First Amendment aims to foster. It was more disappointing still to see the Biden Justice Department defend the Trump administration’s indefensible spying on Washington Post journalists just a few weeks ago.
Simply put: these gross press freedom violations cannot continue for another presidential term. Taking the journalist-subpoena arrow out of the Department of Justice's quiver is an important first step to achieving that.