The recent subpoenas of reporters make clear that the President is trying to threaten the press. Few protections are in place to stop him.
For years now, in office and out, Donald Trump has been unabashed about his desire to see reporters behind bars. The President’s fantasies can, at times, take on a lurid tone. Campaigning for Republican candidates during the 2022 midterms, Trump assailed the leak of the Supreme Court’s draft opinion in Dobbs, the landmark abortion case, and outlined his preferred approach to identifying the source: “The reporter goes to jail. When the reporter learns that he’s going to be married in two days to a certain prisoner that’s extremely strong, tough, and mean, he will say, he or she, ‘I think I’m going to give you the information. Here’s the leaker, get me the hell out of here.’ ” This April, after it was reported that a crew member was missing from an American fighter jet that had been shot down in Iran, Trump vowed that the person who had spoken to the press would be quickly outed: “We’re going to go to the media company that released it, and we’re going to say, ‘National security. Give it up or go to jail.’ ”
No one went to jail, but Trump has seized on another opportunity to threaten journalists. Earlier this month, the Times reported that he was forced to ditch his new Air Force One, given to him by the Qataris, for part of the ride home from the NATO summit in Turkey; the plane allegedly lacked anti-missile capabilities. (Trump had claimed that he was taking a last spin in the previous Air Force One “for old time’s sake.”) According to the Times, a senior F.B.I. official asked the newspaper to hold the story, citing national security. The Times declined to comply. Two days later, three journalists received subpoenas to appear before a federal grand jury in Manhattan. The Times later reported that the White House had instructed the director of the F.B.I., Kash Patel, to oversee an investigation into the leak, and that Patel had spent the day the subpoenas were issued holed up at the White House—not the ordinary locus for a law-enforcement operation. The Times, in a sealed filing that it sought to have publicly released, moved to quash the subpoenas, saying that they were “brought in bad faith to punish The Times for its coverage.”
Administrations of both political parties have subpoenaed reporters to testify before a grand jury in past cases involving national-security leaks, but rarely, and as a last resort. Gabe Rottman, of the Reporters Committee, told me he counted just three such instances since 2000. Justice Department regulations, first formulated in 1970, stipulate that reporters are to be subpoenaed only when the government is seeking information that is “essential,” and it has made “all reasonable attempts” to obtain that information elsewhere. But these protections are illusory in the hands of an Administration determined to ignore them; they are not enforceable in court. Court rulings on reporter’s privilege have not been favorable. “Newsmen are not exempt from the normal duty of appearing before a grand jury and answering questions relevant to a criminal investigation,” the Supreme Court said in a 1972 ruling, though it left open the possibility of protection in cases where the government was engaged in harassment or bad faith, as the Times now claims it is.
There seems little chance that Times reporters will be in jail cells anytime soon; judges are unlikely to order that extreme step this early in the legal process. But it’s not clear what will happen if the Administration insists that forcing reporters to testify is its only option. Just as worrisome, though the Times has the resources and fortitude to withstand this pressure, the same may not be true of other news organizations. Such outlets may become wary of pursuing stories that could put them in the Administration’s crosshairs. That chilling effect, of course, is precisely what Trump is after. ♦
