He was only slightly warmer Wednesday at his first news conference as president-elect, referring to some “very, very dishonest people” right in front of him as “fake news” purveyors — his characterization of CNN and Buzzfeed reporting on allegations that Russia had been collecting compromising financial and personal information on Trump for years.
It is, of course, reassuring that Trump has promised not to kill journalists. But a more realistic question that might soon come before us is: Would he throw them in jail?
During the campaign, Trump promised to “open up” libel laws so that when journalists “write purposely negative and horrible and false articles, we can sue them and win lots of money.” The threat of having to pay damages for libel would no doubt chill journalism. There are, however, no federal defamation laws for him to open up. In issuing threats on this score, he has been blowing smoke.
But there is another open secret that Trump might soon learn. There are statutes on the books concerning the publication of national security secrets that, employed aggressively, could cripple American journalism.
Even before he takes the oath of office, Trump has been calling for leak investigations. When NBC News obtained information from sources within the intelligence community about Russian hacking of our elections, Trump demanded that the House and Senate Intelligence committees investigate. Once he is president, Trump can set in motion the Justice Department and the FBI to do exactly that.
The Espionage Act of 1917, which punishes, among other things, the unauthorized possession or disclosure of national defense secrets, is the pertinent statute prosecutors would dust off. In the past, and particularly under the Obama administration, the Justice Department has employed it to go after leakers who illicitly convey sensitive government secrets to journalists.
The same law — notoriously poorly drafted — can be pointed at the news media itself. In the ordinary course of covering national security affairs, reporters gain possession of sensitive government secrets every day of the week. If we are well-informed about what our government is doing around the world, it is thanks to that fact. But it is thanks to the same fact that two top legal scholars have called the Espionage Act “a loaded gun pointed at newspapers and reporters who publish foreign policy and defense secrets.”
To be sure, that gun has seldom been fired at journalists, and never successfully. Prosecutors confront a high hurdle because, according to the statute’s terms, they need to demonstrate that offenders had a malignant state of mind, that they had intended to injure the United States. That is an obstacle almost impossible to overcome. Journalists can claim — truthfully — that in gathering secrets they are simply trying to inform the public.
But that is not the end of the matter. There are specialized statutes that protect narrow categories of secrets, such as the COMINT Act, which guards the ultrasensitive realm of communications intelligence. The COMINT Act not only criminalizes the unauthorized possession or disclosure of such secrets, but also explicitly punishes their publication. Under its terms, and unusual in America law, the state of mind of the perpetrator is irrelevant. The action itself is the crime no matter the intent of the actor.
This publication clause has never been deployed against journalists, and some observers have concluded that it has effectively become a dead letter. Of course, if prosecutors ever did decide to resurrect it, they’d run headlong into a political firestorm. They’d also run headlong into a constitutional question of great moment: Does prosecution of a news organization for publishing government secrets violate the First Amendment guarantee of freedom of the press?
The Supreme Court has never had occasion to rule directly on the matter. The single most important precedent is the Pentagon Papers case. It suggests that the First Amendment would not bar such a prosecution. A majority of the justices indicated, in non-binding remarks, that they might well have upheld an Espionage Act conviction against The New York Times if one had come before them. But the Nixon administration, though it tried to stop the newspaper’s presses, never charged the Times with any crime.
Trump, who appears to loathe the news media more ferociously than even Nixon, might well decide to go where his disgraced predecessor declined to tread. If so, The Washington Post is a possible first target. Already during the campaign, Trump was threatening The Post‘s owner, Amazon founder Jeff Bezos, on account of the newspaper’s aggressive reporting about his past. “Believe me,” Trump said of Amazon on one occasion, tying it to The Post‘s unfavorable coverage, “if I become president, oh, do they have problems. They’re going to have such problems.”
Not to give Trump ideas, but if he wants to follow through on that unseemly threat, he might well find an opening in a Jan. 5 Post story headlined “U.S. intercepts capture senior Russian officials celebrating Trump win.” The article detailed the presumably super secret fact that U.S. intelligence has been eavesdropping on high-ranking Kremlin officials. On its face, publication of such information is a blatant violation of the COMINT Act (though, as always in espionage matters, there could conceivably be exculpatory facts of which the public is unaware).
If the journalists at The Post are charged, tried and convicted of such a crime, the case would certainly rise to the Supreme Court. How the justices would rule is unknown. What is known — and frightening to contemplate — is that even as our secrecy laws are necessary for our security, they can readily be misused. The men who clumsily drafted our espionage statutes in 1917 failed to anticipate the possibility of a U.S. president issuing fascistic threats against journalists and journalistic institutions.
In other words, like everyone else before and after, they failed to anticipate the possibility of a President Trump.
Gabriel Schoenfeld, a member of USA TODAY’s Board of Contributors, is a senior fellow at the Hudson Institute and the author of Necessary Secrets: National Security, the Media, and the Rule of Law. Follow him on Twitter @gabeschoenfeld.