from the look-at-that-roadmap dept
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.And that's not the only intimidating tip that a President Trump could pick up from President Obama:
“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.
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.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.
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.
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.