Sorry Mr. President, You Can’t Lock Up Journalists

There are a lot of reasons that Washington journalists see themselves as an exalted class.  There’s the ego that comes with holding power to account, and seeing yourselves as the bulwark standing between the nation and tyranny.  Then there’s the pride of being defenders of the Constitution–well, at least the parts of the Constitution that don’t stand in the way of the progressive agenda–coupled with the tremendous influence that arises from being able to shape the narrative that everyone sees.  Put all those things together, and what you get is one very intoxicating cocktail.  One can easily see how the DC press corps imagines itself as running the country rather than reporting on it.

Moreover, when you’re part of Big Media, there never seems to be a price for being wrong.  NBC gets caught selectively editing the 911 call of George Zimmerman to make him sound like a racist, and beyond a token firing nothing changes.  CNN perpetuates the myth of “Hands Up, Don’t Shoot,” setting a whole town ablaze and ruining the life of a police officer, and they still advertise themselves as the most trusted name in news.  Brian Williams is revealed to be a serial fabulist but remains on the air at MSNBC, while Dan Rather–who disgraced himself at CBS with a fake story designed specifically to tip the results of a presidential election–is considered an elder statesman of the profession.  When you’re bulletproof like that, it’s only natural to start thinking you’re Superman.

Finally–and most importantly–there’s the First Amendment, which provides legal protection to pretty much anything journalists want to do.  This is exactly as it should be, by the way, the corruption of newsroom culture notwithstanding.  And it’s what ultimately makes journalists in this country–no matter how biased or inaccurate they might be–more or less untouchable.

That Donald Trump, as president of the United States, might not understand that could be a cause for concern:

Mr. Comey had been in the Oval Office that day with other senior national security officials for a terrorism threat briefing. When the meeting ended, Mr. Trump told those present — including Mr. Pence and Attorney General Jeff Sessions — to leave the room except for Mr. Comey.

Alone in the Oval Office, Mr. Trump began the discussion by condemning leaks to the news media, saying that Mr. Comey should consider putting reporters in prison for publishing classified information, according to one of Mr. Comey’s associates.

This, mind you, is part of the same purported memo from James Comey that got leaked to the New York Times and is now causing a new round of headaches for the administration.  In it, the former FBI Director supposedly documents how President Trump pressured him to drop the investigation into Mike Flynn’s ties to Russian interests.  At this time, there is no actual proof that such a memo even exists–so all of this could just be so much balderdash.  But if any of this is true, and the president really did ask about the possibility of jailing reporters who publish classified information obtained from leaks, then he really needs an object lesson in how all of this works.

First off, as per the Espionage Act of 1917:

Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it.

On its face, the law would seem to indicate that publishing classified information is indeed a crime.  In fact, this was the very argument that the Nixon administration used in New York Times Co. v. United States, more commonly known as the Pentagon Papers case.  The administration sued the New York Times to prevent publication of the papers after they had been leaked to a reporter, a case that made it all the way up to the Supreme Court.  There, the Court ruled 6-3 that the government had not met the “heavy burden” of proving that publication of the papers would be injurious to the national security of the United States.

Technically, the decision left the door open for the government to pursue future lawsuits if it felt that publication of classified material really did present a critical threat to national security–but it also set a very high standard of proof, and to this date no other lawsuits have ever been brought.  It also established that while the leaking of classified information remains a crime, the publication of it is not.  That’s why Edward Snowden is a wanted man for violating secrecy laws, but Julian Assange is not criminally liable for publishing it.

Perhaps Trump was simply not aware of this bit of legal arcana, and that’s why–assuming the memo is real–he asked Comey about it.  Still, he had to consider the optics of throwing reporters in jail over the leaks that have dogged his administration.  Even if such a thing were legal, it would look really bad–which is probably why Congress has never amended the Espionage Act to make publishing classified information explicitly illegal.  Smart politicians would rather not make the country look like a banana republic.

Of course, that could be why when Barack Obama sicced his Justice Department on reporters, he did it in secret.

If I were Trump, I’d focus my energies on finding the source of the leaks.

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Marc Giller

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