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
You can read various opinions from our Board of Contributors and other editors on the Opinion home page, on Twitter. @usatodayopinion and in our daily Opinion newsletter. To respond to a column, send a comment to letters@usatoday.com.
I’m sorry but the same people having a fit are the same people still pretending there was Russian collusion, and actually celebrated the FBI violating the rights of Carter Page, and others in the Russia investigation even when confronted with facts.
Adam Schiff was one of those targeted, but in case your memory is about as good as Joe Biden’s you may have forgot that AAdam Schiff himself subpoenaed Devin Nune” phone records in the middle of impeachment hearings without anyone elses knowledge but now he claims to be some kind of victim? For the last four years Schiff seemed to have a whole hell of a lot more knowledge about leaks than anyone else and when it came to a whistleblower report, Schiff seemed to have a week or two of advanced knowledge, hinting at it before a Congressional recess.
As for journalists, they can go you know what themselves. They are not being prosecuted for anything so their “press” freedoms are intact. Those who leaked information don’t have the freedom that the press has. If the Press is going to continue to use “anonymous sources,” as a way of passing off lies as truth than they can damn well have their phone records subpoenaed. The subpoena’s are not being given to the people in these investohgations, they are aimed at the companies who hold those records. Given the amount of information collected by these companies from average Americans signing up for services who put the fact their information is being collected as per terms of use they should not be allowed such special rights in this area. Again, the media is not being arrested or charged with a crime.
So, instead of determining who the press and who journalists are, how about we start with what the heck freedom of the press actually is. Can a journalist kill someone if it furthers the story they are working on? Can they kill a secret service agent because they won’t let a press member get close enough to ask a President a question? Can the media break into people’s homes and attempt to find evidence of some crime they suspect you of? Would the police be required to let a journalist go? Would you be charged with violating the first amendment rights of a reporter if you stopped them from breaking into your home? Is the press allowed to tap my phone and e-mail accounts if it is done as part of the story they are writing? I recently heard Joe Biden say of the Second Amendment, “No right is absolute.” But hear we are pretending that freedom of the press is an all encompassing field in which the Press are similar to diplomats where they have a mass inmunity from everything as long as it is due to professional pursuits.
Look, The press has a right to print leaks, but with that comes with a responsiblity to also get things right. Looking at their records is not some violation. If someone called me and leaked information to me, the FBI could likely subpoena and look at my records. As a result, there may be a possibility that could be charged with a crime, be found guilty, and go to jail. That is a loss of freedoms. The difference is that the journalist could have their records subpoenaed, but they wouldn’t have to worry about being charged with a crime, being found guilty, or going to jail, No freedom lost. If Journalists are going to print the tales of a leaker, maybe they should grow a few hairs on their balls,and find a different way to recieve said leaks preferrably one that also includes the ability to confirm the information given is from the person they say they are, and not Adam Schiff under his desk with a sock over his phone.
By the way, I have very little respect for journalists these days, and less respect for anyone in the FBI, CIA, NSA,CDC, NIH, or especially anyone in the BIden Administration. The media and left along with Government agencies lied to the country for 4 years about collusion and no one has suffered any reppercusions for anything except for the victims being lied about. The collusion myth was a lie of mammoth proportions and has ripped this country apart. John Durham seems to have disappeared off the earth and no one is even asking where he is. So I have no care in the world what the hell went on in the FBI and DOJ during the Trump Admin when half the people in those agencies put forth what was basically an actual coup/insurrection and hasn’t paid a single moment for what they put the country through.
“The secret of freedom lies in educating people, whereas the secret of tyranny is in keeping them ignorant” M. Robespierre.
Yep true enough. That’s why CRT ought to booted right out of the schools and them put STEM in its place bigly.
Benjamin Franklin is probably the most relevant “journalist” if we are going to write new laws defining journalists. Franklin used the pen name “Silence Dogood” and worked anonymously – for free! Sort of like social media writers.
Funny how all of a sudden there’s no more photo ops, no more nonstop media coverage, no more “kids in cages (despite there being at least four times as many under Biden) and no more crisis at the border now that the numbers are at all time highs and a DEMOCRAT administration is in control. Oh, and you’re a racist if you point that out. See how it works?
Predating ratification, Madison, Hamilton and Jay made clear in American prose system that “constitutionality” always supersedes legal unconstitutional precedent. Most court cases worldwide are won using “legal precedent”. The American system made an exemption for constitutionality.
Section 2 of Article VI is well known but there is also “Section 3” (American Loyalty Oath clause) ratified in 1789. The 9th Amendment was ratified in 1791. If Madison, Hamilton and Jay’s model were being followed, whistleblowers like Snowden should be able to win a U.S. Supreme Court ruling.
Snowden was upholding his Oath of Office by refusing and reporting “unconstitutional” practices by disloyal superiors violating their supreme loyalty oath. Snowden was being loyal to his Oath of Office and not violating the Constitution and not violating citizens’ constitutional rights.
Put simply: the tail is wagging the dog. Instead of oath-sworn officials being restrained and governed by the U.S. Constitution, the officials are restraining the constitutional rule of law. Torture is not only illegal but DISLOYAL for any American official or contractor – they did it anyway.
The U.S. Constitution is a wartime governing charter designed to be followed during wartime. We have now mission-creeped for nearly 20 years. Until oath-sworn officials start understanding they never had this authority in the first place, nothing will change. Snowden should win any U.S. Supreme Court “judicial review” ruling.
Seems just about everything the media wrongly accused Trump of doing, Obama and Biden actually did and are doing.
Anonymous sources must be banned.
Pro Publica is a partisan group that favors the left. Under the Obama administration it was given IRS information and published confidential information of 6 conservative groups applying for tax-free status.
We need to look no further than the Obama administration for leaking information to a left-wing partisan group who then published the data.
protections for a strong independent media.
The writers of constutuiution were very precise in the their word selection. Careful not to protect “media” as you use the word today. A collection of persons involved in spreading information. They Desired to protect the process, not the people. Or more accurately prevent the govt from limiting the free exchange of communication.
A rambling piece that strays off topic to soft-peddle the scandal flowing from Sessions and Barr’s conduct, and which gratuitously tosses in digs at NYT and other non-Trump media. The fact of the matter is that this was not an effort to track down leaks of allegedly confidential or classified information, something that would be legitimate, because only DEMOCRATIC members of Congress and their families and staff were targeted. I have read that most of the leaks about Trump’s disorganization, lackadaisical attitude, inattention to detail and lack of leadership came from the West Wing. Also, only non-Trump media were the subjects of the subpoenas. Trump was looking for dirt he could use against those he perceived as his enemies, and when the “investigation” didn’t come up with anything, Barr told investigators to keep looking. The “investigation” started under Sessions, but was continued by Barr. This was purely political and another abuse of power. And, there really wasn’t any issue as to whether those targeted were “real” journalists. This situation is not comparable to Julian Assange and his illegal hacking and publication of stolen e-mails, either. Turley tries to throw Sessions’ and Barr’s misconduct into a swirl of dissimilar issues to mitigate the impact of Barr’s dereliction of duty. More “whataboutism”. Well, it won’t work.
scandal flowing from Sessions and Barr’s conduct
When you start out with spin, the rest of what ever you wrote is meaningless. To Ignore what Obama did regarding the spying on and prosecution of Media types are lies of omission.
I got caught reading up from the bottom of the commets and veered into this mess of logic, that I refused to read after the first sentence minutes before.
I have read that most of the leaks about Trump’s disorganization, lackadaisical attitude, inattention to detail and lack of leadership came from the West Wing
What you read lacked any evidence. Not a single named source, no possibility of verifying the accuracy of any of the claims coming out of the West Wing. Lots of the stuff written was fabricated, and what had a kernel of fact attached, was spun out to ridiculous conclusions. As you so ably demonstrate in you comment.
From the more enlightened PRIORY (the wise WHITE MEN who wrote and had influence on our Constitution):
Thomas Jefferson “No experiment can be more interesting than that we are now trying, and which we trust will end in establishing the fact, that man may be governed by reason and truth. Our first object should therefore be, to leave open to him all the avenues to truth. The most effectual hitherto found, is the freedom of the press.”, he also found the press repugnant ‘our newspapers, for the most part, present only the caricatures of disaffected minds.”
Ben Franklin “Any Man who can procure Pen, Ink, and Paper, with a Press, and a huge pair of Blacking Balls, may commissionate himself; and his court is immediately established in the plenary Possession and exercise of its rights.”
Tocqueville “When a large number of organs of the press come to advance along the same track, their influence becomes almost irresistible in the long term, and public opinion, struck always from the same side, ends by yielding under their blows.”
John Adams thought the freedom of the press essential but to be held accountable “The liberty of the press is indeed essential to the nature of a free state, but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published.”
Additionally from Juvenals Satires:
“There is a Lust in Man no Charm can tame,
Of loudly publishing his Neighbour’s Shame.
On Eagle’s Wings immortal Scandals fly,
While virtuous Actions are but born and die.”
And finally from Franklin: “So much has been written and published on the federal Constitution, and the necessity of checks in all other parts of good government has been so clearly and learnedly explained, I find myself so far enlightened as to suspect some check may be proper in this part also; but I have been at a loss to imagine any that may not be construed an infringement of the sacred liberty of the press.”
Jeff makes a continuous argument that Turley only works for Fox. This is an article Turley wrote for USA today. This is yetl another site that hapless individual, Jeff, doesn’t recognize.
“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.”
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Welcome to the foxes devising new protections for the chickens. The best protection is to leave them hell alone while at the same time obliterating New York Times v. Sullivan which is protection too far in the other direction.
Accountability helps everyone with the biggest beneficiary of that is always society.
I don’t know if Pro Publica received copies of actual tax returns, or transcripts. If the former, then it was likely an IRS employee, manager or contractor. If PP instead received computerized transcripts of tax returns, then the leaker was actually a hacker. Since the leak investigation has been elevated beyond the IRS IG, and also includes the Treasury IG and the FBI, I expect that the PP reporters and editors will have their phones tapped, their email hacked, and be put under surveillance to see who they meet with. I have to hand it to them that they’re willing to put themselves out there to do what real investigative reporters used to do. Most “reporters” these days don’t actually do the work of investigative journalism, but instead are prima donnas like Don Lemon who merely spout their personal opinions.
A “journalist” is a human with a journal which has a list of people who take leaks out in public.
Journalism is sorta like pornography…you know it when you see (read) it. Unfortunately the activist “journalists” have evolved into active propagandists and routinely tout one political philosophy over another, ridicule, dox or harass those who with opposing viewpoints. The question is truly a hard one to define but so is misinformation and propaganda and even mores when it becomes part of the psychological operational effort led by our national adversaries. I don’t believe the capitalist system of ignoring it and it will go away works very well, nor will a legal opinion defining journalism work well. Difficult question, but like porn, it is often easily recognized for what it is.
The idea that to legally qualify as a journalist you need some sort of degree or credentials or other means that verify you are a “real” journalist is akin to requiring a songwriter to prove he/she has the bonofieds to write songs.
This
“Another is to require a higher presentation (and higher clearance) for any search of journalists’ files.”
And politicians – they should not be exempt – for example, what was the extent of Eric’s association with the Chinese plant? Just because he’s in Congress does not provide him with special privileges regarding disclosure of classified information to a foreign power Could an instance such as that justify reverse engineering? Possibly? And make that regardless of party affiliation
“Another is to require a higher presentation (and higher clearance) for any search of journalists’ files.”
The Government cannot create a test to define “journalist”. The first amendment is a bar to Government action. You cant then give the government the power to define that, which the govt desires to control.
Going big on the question, Jon! Deservedly so on some level. I suspect there’s more than a bit of divide and conquer involved since the bigger the question the more it will pull attention away from Barr’s running of a shadow Justice Dept. within the Justice Dept. But that’s a world unto itself, for sure…
Yes…, what is a journalist? For that matter we should probably take a deep dive into what is journalism itself since it seems we’re at a crisis point there as well. And is social media journalism? Trump was a colossal leaker through his twitter account. How far down that rabbit hole do we go?
Really looking forward to how this plays out.
eb
“
Anonymous wrote, “is social media journalism?”
NO!
Unfortunately there are too many people that get their “news” and “facts” from social media. Social media has created a huge group of people that are like ignorant school age children that blindly believe everything their friends tell them regardless of actual facts and reality.
I actually agree with this on some level. But, as you say, since too many use it as their only ‘news’ source, and since we just had a president who used it as his main interaction with the world, spreading much false information in the process, the question has to be answered. Also the social media tech giants have to be held accountable through their role as being publishing clearing houses of sorts.
But from 30 thousand feet i agree with you.
eb
Anonymous wrote, “the question has to be answered.”
The answer to the question “is social media journalism” has been answered, it is and will always be NO!
Just because there are ignorant immature people that get their news and facts from social media doesn’t mean that social media should be considered journalism. You can’t fix stupid. Social media is like two acquaintances talking to each other on the street corner, that’s NOT journalism and should NEVER be considered journalism.
Anonymous wrote, “Also the social media tech giants have to be held accountable through their role as being publishing clearing houses of sorts.”
They are simply providing a public platform for people to communicate. It’s the digital equivalent to the town square, local tavern or school yard where people of all ages can freely communicate with others.
The social media tech giants need to stop censoring social media, period, end of discussion! Social media platforms should be 100% based on absolute free speech just like acquaintances communicating to each other on the street corner. There are real laws that cover illegal activity and things like libel, but free speech should never be censored.
“is social media journalism?”
Compare and contrast. Tomas Paine. The most well known pamphleteer. Using the most advanced technology of day to by-pass the big media “newspapers” of the day to advance the news of the day.
A public mass communication technology is hard to eliminate as “press” as enumerated in the Constitution. Much like pornography, is lies in the eye of the beholder, or more accurate today, the eye of the political cabal in power at the moment.
What is a journalist? Let me help with that.
Propaganda Is Destroying Trust In The Fourth Estate and Wreaking Havoc On Society
What we have in the media aka “the press” these days are fewer real journalists and more propagandists. The media has become unethical propaganda activism and less ethical journalism. The real question is; when a specific media outlet becomes a pure propaganda arm of one political party are they truly protected by “the press” clause of the First Amendment.
There needs to be some effective changes to the ability of politicians to sue specific media outlets for libel and slander, as it is right now politicians are stripped of their ability to sue the media for libel and slander simply because they are an elected official – THIS STRIPING OF INDIVIDUAL RIGHTS IS WRONG!
Understand and support protections for a strong independent media.
But should propaganda arms get the same protections?
And rather than carving out “protected” classes, shouldn’t the Fourth Amendment apply equally to all Americans?
One man’s “propaganda” is another’s “truth.” It’s nearly impossible to define except perhaps in very extreme cases. I, for one, considered WikiLeaks a more valuable and reliable source than most mainstream news.