If You're Worried About What President Trump Can Do To The Press, Blame President Obama

from the look-at-that-roadmap dept

President Elect Donald Trump has made no secret of his dislike for any reporter who reports stuff about him in a negative light, and throughout the campaign and even after being elected, he has spent a tremendous amount of time insulting, attacking and berating the press. Oh, and threatening them with bogus defamation claims that rarely seem to turn into actual lawsuits. Trump famously promised to “open up” the libel laws if he became President, though there really isn’t that much he can do on that issue directly.

But, as a story at Politco is noting, it’s probably not libel laws that reporters should be worried about: it’s things like the Espionage Act and bogus intrusive investigations of reporters by the DOJ. And, really, while the report only mentions this in passing, if a President Trump goes down that route, it’ll be because he’s picking up on the trend created by his predecessor, President Obama. As we’ve noted, President Obama has used the Espionage Act against more whistleblowers than all other Presidents in history combined. In fact, he used it more than twice as many times as all others combined. Think about that.

During the Obama administration, the Justice Department brought more criminal charges under the Espionage Act?a vague 1917 law that makes it illegal to share information related to national security?than it had under all previous presidents combined. It used the Espionage Act seven times against government employees who spoke to reporters. If Trump continues to aggressively prosecute reporters? sources, it will make it much tougher for journalists to report on the government.

?What is very true is that an increase in prosecution of leakers and leak investigations has a huge chilling effect on the ability to report important information about what the government is up to,? said Laura Handman, a partner at Davis Wright Tremaine who specializes in media and First Amendment law.

This could be especially damaging to journalists because confidential sources and government leakers are likely to be the best source of exposing potential wrongdoing in Trump?s government.

And that’s not the only intimidating tip that a President Trump could pick up from President Obama:

Trump?s Justice Department could also ask for more federal grand jury subpoenas against reporters who rely on confidential sources to report on government activities.

This is another tactic that the Obama administration has used. New York Times reporter James Risen was nearly held in contempt of court and thrown in jail when he refused to identify one of his sources, who was being prosecuted under the Espionage Act.

The Trump administration could even try to use the Espionage Act to bring criminal charges against journalists, according to First Amendment experts.

?There are sections of the Espionage Act which have now been used, under President Obama, against leakers which could be used against those who publish information obtained from those leakers,? Abrams said.

The article also talks about the infamous and ridiculous case of James Rosen, a Fox News reporter that the Obama administration came mighty close to using the Espionage Act on, calling Rosen a “co-conspirator” in the leaking of confidential information. Then Attorney General Eric Holder later admitted he regretted this decision, but it was pretty difficult to take seriously.

Here at Techdirt we called out the Obama administration many, many times on these highly questionable tactics, intimidating and threatening whistleblowers and journalists alike. And people told us we were overreacting. Somehow, I get the feeling that those who opposed Trump in the election will suddenly have a change of heart over these practices. If Trump goes down that road, those who are upset should be blaming President Obama and his Justice Department for leading the way.

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Comments on “If You're Worried About What President Trump Can Do To The Press, Blame President Obama”

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65 Comments
That One Guy (profile) says:

"Don't blame me, he did it first!"

If Trump goes down that road, those who are upset should be blaming President Obama and his Justice Department for leading the way.

Yes and no.

If Trump follows the same road Obama certainly deserves the blame for opening up the possibilities in the first place, but even so Trump wouldn’t be any less responsible for his actions, as the fact that Obama did it first doesn’t mean Trump has to follow suit.

There is more than enough responsibility and blame to cover both of them if Trump decides to do a little ‘witch hunting’ of his own, no need to pick and choose.

Roger Strong (profile) says:

Re: "Don't blame me, he did it first!"

Just so. Another example:

Back during the Clinton administration several people were being held for years without trial or defense on secret accusations of links to terrorism.

Even "News of the Weird" reported on it. (Admittedly, it was pretty weird. At the time.)

In June 1999, News of the Weird reported that Palestinian researcher (and 15-year U.S. resident) Mazen Al-Najjar had just completed his second year of federal incarceration in Bradenton, Fla., having never been charged with a crime and never told of the "evidence" against him. In February 2000, the FBI’s General Counsel told a House immigration subcommittee that four other men are similarly incarcerated with no chance to present favorable evidence or to cross-examine witnesses against them. These exceptions to fundamental American rights are apparently permitted under a 1996 anti-terrorism law even though the "terrorism" evidence is known only to a few people in the U.S. government.

(Al-Najjar was released and deported after five years, after a judge ruled the government had no evidence to continue holding him.)

And so Bush II had the precedent he needed to hold people without trial by the hundreds. Many now half-way through their second decade of imprisonment without trial.

So, yeah. Bill Clinton gets plenty of blame for Bush II’s actions, but that doesn’t absolve Bush II. Or Obama for that matter. While Obama repeatedly tried to shut down Guantanamo, there was a stunning lack of leadership on his part for not succeeding.

And I don’t doubt for an instant that Trump will take advantage of the precedent set by the previous three administrations.

nasch (profile) says:

Re: Re: "Don't blame me, he did it first!"

While Obama repeatedly tried to shut down Guantanamo, there was a stunning lack of leadership on his part for not succeeding.

I don’t think there is anything he could have done to get the Republican Congress to go along with that, and AFAIK he couldn’t do it without their cooperation.

Thad (user link) says:

Re: Re: Re:3 "Don't blame me, he did it first!"

Weeeell, they managed 60 votes to pass the ACA (though that requires counting Joe Lieberman as a Democrat, which I think was a questionable proposition even before he ran for his last term as a third-party candidate). But yeah, they certainly didn’t have a 60-vote bloc for a full two years as the narrative often holds.

Roger Strong (profile) says:

Re: Re: Re:4 "Don't blame me, he did it first!"

When? By the time Senator Al Franken was sworn in – Republicans had contested his election for seven months – Senator Byrd of West Virginia was hospitalized and out of commission. Then Senator Ted Kennedy died.

Paul Kirk eventually replaced Kennedy. But Byrd was out for the rest of the year, by which time a deal had already been made on the ACA and it had passed.

Roger Strong (profile) says:

Re: Re: Re: "Don't blame me, he did it first!"

He could have appealed to the American people, and explained to them why the right to a trial is important. Just look at Jon Stewart’s rallying the public to get the Zadroga Bill passed and later renewed in the face of Republican opposition. I’m pretty sure that even without a supermajority, Obama can get more publicity than a comedy show host. Especially on an issue dealing with basic legal rights.

Or he could have closed it with an executive order. Sure, he signed such an order to transfer detainees to where they could have proper trials. Sure, Congress blocked it by withholding funding. But Obama could have gone further, ordering “Try them or we release them.”

Given that the whole thing was unconstitutional to begin with – the whole point of the Guantanamo Bay detention camp being the false claim that it was outside U.S. legal jurisdiction – it would be a valid use of an executive order. If Republicans tried to take it to court, well, demanding the illegal in court wouldn’t go well for them.

Republicans would have screamed “he’s releasing ter’rists!” But given the number of detainees eventually released – or still detained having been cleared years ago – Obama should have shown some leadership and explained how most were NOT terrorists. The Republicans were always going to scream about something anyway.

Anonymous Coward says:

Re: Re: "Don't blame me, he did it first!"

When you consider that around half of the country is in favor of torture, it’s no surprise that Gitmo is still open.

There’s no public support for it even if Obama wanted to close it. There’s always “what would we do with the detainees?” as if I dunno – a trial – would be out of the question.

Roger Strong (profile) says:

Re: Re: Re: "Don't blame me, he did it first!"

Yup. After it was widely known that the US had become a torture state, Bush II was re-elected by an even wider margin. Those responsible have no fear of prosecution, can still show up as pundits on national TV and can still teach law at Berkeley.

In the 2012 and 2016 elections Republican candidates called for torture to resume because it helped their chances in the primaries. Without a hint of a scandal about it by the Democrats or the general public.

This is not a country that has ended torture. At most it’s a country that has paused torture for the current administration.

nasch (profile) says:

Re: Re: Re: "Don't blame me, he did it first!"

as if I dunno – a trial – would be out of the question.

The government knows full well there is not remotely enough evidence to try most of the people, let alone convict them. The options are to hold them indefinitely without charges, or let them go somewhere. Since apparently most people consider someone subhuman once they have been accused of terrorism, option A is being favored.

That One Guy (profile) says:

Re: Re: Re:2 "They might do to us what we did to them! Better to just throw away the key and any 'rights', just to be safe."

I think one of the more disgusting excuses I’ve run across, though it’s been a good while so while I’m fairly certain it was from one of those directly involved I can’t say for certain, was that they couldn’t ‘risk’ trials as the people that would be released might carry a grudge against the US for locking them up without trial for so long, and become a threat because of that.

Just… let that stew a few seconds. ‘We can’t let them go after treating them this bad, they might decide to return the favor and treat us as enemies!’ That exact same logic could be used to lock up anyone, for life, all without a trial.

Anonymous Coward says:

Re: Re: Re:3 "They might do to us what we did to them! Better to just throw away the key and any 'rights', just to be safe."

To be fair Jamal Al-Harith apparently did join ISIL after he was released from Gitmo and collected 1 mio. pounds from UK for human rights violations (the irony of UK and USA cooperating when USA is refusing to recognize those rights…).

When that is said the reasoning is a torturers dilemma: If you ever release the victim, you have released an enemy for life.
Unless you trust Hollywoods depiction, torture is mostly hurting the torturer, while almost never giving useful information.

nasch (profile) says:

Re: Re: Re:4 "They might do to us what we did to them! Better to just throw away the key and any 'rights', just to be safe."

When that is said the reasoning is a torturers dilemma: If you ever release the victim, you have released an enemy for life.

It’s definitely a risk. It’s disgusting that the people in charge of the torturing are not willing to accept the consequences of it by accepting that risk, but insist on putting the remaining burden on those that were already tortured. If the American people are OK with torturing our enemies, they should also be OK with the fact that that is going to create more enemies. But instead they want it both ways – waterboard those dirty terrorists, and then lock them up for life because now they might be mad at us.

Anonymous Coward says:

Re: "Don't blame me, he did it first!"

Obama set new horrible precedents for the left. If Trump follows suit, few on the left will be able to protest without being obvious hypocrites running away from their own prior statements made when Obama was president. Because Obama did it first, it will be about a hundred times more difficult for the left to mount any kind of effective opposition to Trump doing the same things.

Trump can be blamed for his own actions, obviously — I don’t think anyone was suggesting otherwise — but Obama can be blamed for screwing the pooch for all time. A hundred years from now Republicans will still be pointing to Obama’s administration to indemnify their own actions from scrutiny by the left.

The only way out of this fix is for Obama’s legacy to be rightfully tarnished and exposed by the left as the shitshow it always was. How likely do you think that is? Nobody is going to want to tar the presidency of the first black president. America is fucked.

Anonymous Coward says:

Don’t worry. Trump will only use this against the media who speak negatively against him. As long as they only say positive things and end every single story with “Oh my he has a gigantic penis” he won’t be forced to use the Espionage act against them.

But seriously, this is pure bullshit. No president should be going after whistleblowers. They should be completely above it. I don’t care if the whistleblower released to the public the plans to the Government’s Death Star and their thermal exhaust port weakness. They should net be in jail. If the information released even has a single sniff of possibly, maybe for the public good it should be completely protected.

The only time I would entertain any type of punishment is if the information was released with the direct intention of hurting others. For example, mining the social Security database and selling that information for identity theft. Or downloading a person’s private medical history and releasing it to the media to the media to destroy their career and life.

David says:

Re: BS and BS

But seriously, this is pure bullshit. No president should be going after whistleblowers.

It probably depends on the definition of whistleblower. However, what is pure bullshit in the first place is the Espionage Act. Not being allowed to defend your actions in court? What kind of justice is that supposed to be?

It’s like prohibiting someone accused of attempted murder by slitting one’s throat to explain that the person had a crushed windpipe and would have suffocated otherwise.

Not being allowed to fill in the picture for any accusation is ridiculous.

And to make matters even more ridiculous: the judge is not even allowed to consider such circumstances if he gets to know them, and the jury must not know them either and, if they accidentally get to know them, must not consider them.

And prosecutional discretion means that this prepackaged "guilty" verdict may be handed out on a whim so that you avoid hitting people with it who objectively fit the facts but are good old boys. Like Petraeus. Or good old girls.

It’s a tool that essentially bypasses the court and hands the verdict to the state prosecutor as soon as we are talking about established facts ("I did not do it" remains the only permissible defense, obviously not a realistic approach for successful whistleblowers).

The Espionage Act never has been anything but unwarranted bullshit perverting the course of justice.

There may be forms of whistleblowing that warrant punishment, and some that don’t. But judge and jury don’t get to decide about that once the Espionage Act is invoked.

Ninja (profile) says:

Mike, this article is a clear violation of Human Rights. I explain: by criticizing both the Democrats and the Republicans in a single article you are literally torturing their little brains. I’m afraid I’ll have to denounce you to the proper channels.

Also, the CIA might be interested in having a chat with you.

Disclaimer: in case somebody doesn’t notice this is a joke. Ahem.

Anonymous Coward says:

Re: Re:

This kindof stuff makes me really angry and frustrated at our government. We are so f-ing partisan that nobody will call out the President for the BS that is. I voted for Obama and I think that actions like that are reprehensible.
The media is just as complicit. They spend ten times more time on freaking facebook memes than anything that actually affects our lives.

Anonymous Coward says:

Re: Re: Re: Re:

I’ll clarify your statement one bit from what I’ve seen this past month: “that between the people and what directly benefits Trump.”

It seems pretty much every single move he has made always answers “So what is in it for me?” He is less beholden to corporate overlords like the rest of the GOP. Instead he is willing the be the useful puppet/idiot for anyone who will make him personally richer.

Anonymous Coward says:

Well, he is certainly starting out in the opposite direction by smacking down CIAs security briefings. I am not sure security and thus information security is much of a concern for him.

He seems much more concerned about what he percieves as personal attacks and irrationally tries to defame the author and/or get the last word. Quite a narc., just like Erdogan.

Anonymous Coward says:

Re: Re:

“I am not sure security and thus information security is much of a concern for him.”

As opposed to Obama, or several other past presidents? The difference between Obama and Trump in this regard is that Obama had enough sense to keep his mouth shut as he goes about not being very concerned with information or security.

It’s only a problem for you now because of Trumps mouth running about it?

nasch (profile) says:

Re: Don't blame the figureheads

Presidents and department heads come and go.

What remains are the agencies, the long term staff members who are not elected and have their own agendas…

Yet the agencies under Obama have used the Espionage Act more than twice as much as any other. So unless you think that’s just coincidence, clearly the people in charge matter a lot.

ReasonToTheRescue says:

Re: Re: Don't blame the figureheads

Or these agencies and non-elected employees plans are simply progressing.

Not saying people in charge don’t matter, only that the ones to really worry about aren’t elected and have been there along with their buddies for decades undermining accountability day by day by day…

Perhaps in the distant future when electing officials, the staff that’s been their for 20 years would need to move on along with all the baggage they bring to D.C. After all they are the continuity between elected officials. They hold onto the ‘corruption’ from one president to the next…

Anonymous Coward says:

Re: Re: Re:2 Don't blame the figureheads

It is a bit easy to blame Obama in such cases. Several republicans in congress were unsatisfied by how little Obama did on that front!

There is a reason why an area of Washington DC is called the beltway and no it doesn’t primarily refer to roads. It is a completely different world, heavily influenced by lobbyists and contractors.

The only way to drain the swamp of contractors is reducing ie. military spending to reduce the state inside the state and to remove other issues from public responssibility. I guarantee you that neither Trump, democrats or republicans are willing to take such drastic measures. At best they are able to stir up the swamp a bit.

Anonymous Coward says:

This just in: NYTimes hires Politico self-described hack

Glenn Thrush is ground zero for fake news.

And the MSM wonders why no one trusts them…

http://www.breitbart.com/big-journalism/2016/12/12/new-york-times-hires-glenn-thrush-wikileaks-humiliation/

New York Times Hires Glenn Thrush After Wikileaks Humiliation

Thrush sends several paragraphs about Hillary’s fundraising operation and leads into the article by admitting, “Because I have become a hack I will send u the whole section that pertains to u.”

Anonymous Coward says:

Re: Re: This just in: NYTimes hires Politico self-described hack

“Speaking of humiliations, YOUR source is the fake news site Breitbart.com.”

Perhaps you’ll like the leftie source here:

http://www.politico.com/blogs/on-media/2016/12/new-york-times-announces-white-house-team-including-peter-baker-glenn-thrush-232526

New York Times announces new White House team, including Peter Baker, [self-described hack] Glenn Thrush

By Hadas Gold

12/12/16 03:35 PM EST

“The New York Times is beefing up its White House [fake news] coverage with two additions: POLITICO’s [self-described hack] Glenn Thrush and current Times Jerusalem Bureau Chief Peter Baker, the Times’ Washington Bureau Chief Elisabeth Bumiller announced on Monday.”

Wyrm (profile) says:

Just a couple of reminders to put things in perspective.

– Snowden might have started a larger movement of whistleblowers. He was not the first, but he was the first to go so massively public with so many papers at once. I can believe that, after him, Obama has to deal with more whistleblowers than any president before.

– On the other hand, wet have Patreus. He leaked documents for his own personal benefit (some minor fame, and a woman), not for the benefit of the public… and he got a light sentence, no outcry, no call for his head on a spike… and an interview with the new president-elect for a job in the next government. Because he’s a valuable and honorable person.

It seems the message is clear. You can leak national secrets. Just do it for personal profit. That means you’re not a threat to the system in place. Questioning the system if the one thing the government will not treat lightly.

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