The Trump Administration's Portentous Subpoenas of NYT Reporters
Law v. norms, once more
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Last week, the Department of Justice, in coordination with the White House, subpoenaed three New York Times reporters at their homes to testify before a grand jury in New York concerning their sources for two stories about security concerns on the Qatari-gifted Air Force One. The journalists had been scheduled to testify yesterday, but the Times filed a still-sealed motion to quash.
The subpoenas highlight the fragility of judicially enforceable legal safeguards for journalists, who are protected from government subpoenas and prosecutions more by norms than by law.
Subpoenas
Journalists claim that the sky is falling on American freedoms whenever they receive subpoenas that seek to discover the sources of criminal wrongdoing. This case is no exception. Joe Kahn, the executive editor of The New York Times, compared the subpoenas to what happens in authoritarian China.
Given the globally unique freedom to publish that journalists enjoy in the United States, this is a wild exaggeration. But the media’s distraught reaction is more understandable, and perhaps more justified, in the historically extreme, press-intimidating Trump administration than it was, say, during the Obama administration, which featured similar rhetoric in analogous contexts.
Kahn said he expects the Times “to prevail” in court against the government. I am not so sure.
In Branzburg v. Hayes (1972), the Supreme Court held that the First Amendment provided no testimonial privilege for refusing to comply with a grand jury subpoena relevant to a criminal investigation. The lower courts have interpreted Branzburg and related doctrines in various ways.
One view was expressed by the Fourth Circuit in the case of former NYT reporter James Risen. Risen had asserted a reporter’s privilege in the face of an Obama administration subpoena to testify in the trial of CIA officer Jeffrey Sterling, who was accused of disclosing classified information about a CIA operation related to Iran’s nuclear program.
The court said: “There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source.” The same point would apply to grand jury testimony.
The Second Circuit, in which the Times grand jury sits, provides somewhat greater (though more complex) protections for journalists. The cases draw many distinctions, and distinguish common law from First Amendment protections. But they basically recognize that the government may enforce a subpoena against a journalist in a criminal investigation only if it can make “a clear and specific showing that the information is: highly material and relevant, necessary or critical to the maintenance of the claim, and not obtainable from other available sources.”
I think the Fourth Circuit has the better view of the law, and the one most likely to be embraced by the Supreme Court. (Congress in 2024 tried but failed to enact statutory protections for journalists in this context.) But it is far from clear that the Times can prevail even under the Second Circuit view. It seems to be arguing bad faith or illegitimate motive under Branzburg. This argument will find support in the president’s rants and legal attacks against the Times and other media outlets. But it will be tough sledding if the articles in question contained classified information.
If the journalists lose, they will likely resist the subpoenas, at least for a bit.
Risen resisted in the Sterling case and then-Attorney General Eric Holder backed down under political pressure and a nudge from President Obama. In 2005, NYT reporter Judith Miller spent 85 days in jail for contempt of court for refusing to comply with a subpoena to testify before a grand jury investigating who leaked the identity of an undercover CIA operative. Miller ultimately complied with the subpoena after obtaining a waiver from her confidential source, Scooter Libby.
In connection with the same matter, Time magazine’s Matthew Cooper resisted a subpoena and was held in contempt but ultimately testified after he received a waiver from his source, Karl Rove. Risen and many other journalists resisted subpoenas in connection with nuclear scientist Wen Ho Lee’s Privacy Act suit against the federal government before their news organizations settled with Lee, in part to avoid a Supreme Court ruling on the journalists’ First Amendment claim.
Two things are important about these and similar examples concerning subpoenas of journalists in criminal investigations.
First, the federal government usually has the legal upper hand, especially in national security cases.
And second, the Holder back-down, and some of the settlements, were influenced more by politics and norms than by law.
This second dynamic will surely have much less impact in the norm-erasing second Trump administration, at least with respect to subpoenas. The administration has already reversed the tighter regulations on subpoenaing journalists put in place by the Biden administration. President Trump will support, not discourage, the Justice Department subpoenas. And the political outcry from the subpoenas will likely be a feature and not a bug for many in the administration.
That said, the second Trump administration has backed down at least once. In March it subpoenaed several reporters over a leak investigation related to the war with Iran. It later withdrew the subpoenas, though why it did so is a mystery.
Prosecution
The bigger danger for journalists in Trump 2.0 is prosecution for publishing or procuring leaked classified information under the Espionage Act, the 1917 law that (to simplify a great deal) criminalizes unauthorized gathering, retaining, or disclosing of national defense information.
The U.S. government has never prosecuted a journalist under the Espionage Act (though the first Trump administration did indict and secure a guilty plea from WikiLeaks founder Julian Assange under it). But it is very easy to imagine Trump 2.0 doing so.
The New York Times’ top media lawyer, David McCraw, stated in November 2016 (with emphasis added):
There was probably a time when … the Times would hold back [from publishing classified information due to legal concerns]. I don’t think they would make that decision today. … Part [of the reason is] that … the impact of the WikiLeaks disclosures [and] the Snowden disclosures is that the people on my side of the house have become convinced that there is no legal consequence for publishing leaks. … When we get a leak we have the ability and the right to publish it.
McCraw uttered this remarkable statement at the tail end of the Obama administration, and I’m not sure he would repeat it today. In his memoir published three years later, McCraw was more circumspect. He acknowledged that he worried that the first Trump administration might bring an Espionage Act prosecution against NYT reporters in connection with a March 2017 story that revealed that the government was seeking to use cyber-techniques to sabotage North Korea’s nuclear missile program.
And he was candid about the protection the First Amendment provided in this context. McCraw said that “few” media lawyers were “completely convinced” that the First Amendment would protect journalists in an Espionage Act prosecution. “Who knew whether the First Amendment would carry the day in a national security case [under the Espionage Act] with prosecutors telling a court that the safety of the nation had been put at risk?” he asked.
The Espionage Act is a very complicated statute with many moving parts and underspecified terms, even before one gets to the First Amendment. I agree with McCraw that one cannot say whether any such prosecution would succeed, especially without knowing the facts of the indicted journalists’ actions. The government’s best chance of success would likely come in a prosecution under Section 798, a 1951 amendment to the act that prohibits publication of classified information “concerning the communication intelligence activities of the United States.”
I argued in 2021 that there was a powerful norm against prosecuting journalists under the Espionage Act for publishing classified information. Even the first Trump administration seemed to embrace it. When it indicted Julian Assange, many, including me, warned that it might create a precedent for going after journalists. (Assange eventually pleaded guilty to obtaining and publishing classified information in violation of the Espionage Act.)
The Trump 1.0 Justice Department went out of its way to deny this inference. Assistant Attorney General John Demers said at the time, “The Department takes seriously the role of journalists in our democracy and we thank you for it. It is not and has never been the Department’s policy to target them for their reporting.” He added: “Julian Assange is no journalist.”
I would have thought that this norm would have little if any purchase in the Trump 2.0 Justice Department or White House. This is just the type of context—prosecutorial discretion to test the bounds of a law against a perceived enemy—where the second Trump administration has enthusiastically defied norms.
But thus far the administration, in defending the subpoenas, has appeared to support the norm. DOJ said that the subpoenas are part of a standard leak investigation and that “reporters are not the targets, those leaking classified information are.”
U.S. Attorney Jay Clayton, who issued the subpoenas, testified yesterday that he was “absolutely committed to and respect our First Amendment and the role of the press” and that his approach was “to limit, to the greatest extent possible, any intrusion into the operation of the free press.” Acting Attorney General Todd Blanche testified yesterday that “We’re not targeting reporters — they’re material witnesses.”
The upshot of these statements is that the Trump administration, like prior ones, is subpoenaing journalists as part of a standard national security investigation and does not plan to challenge the norm against prosecuting journalists for publishing classified information.
I take these nominally norm-respecting pledges about as seriously as I do DOJ pledges not to weaponize federal prosecutions in other contexts. I would not be surprised if the Trump administration indicted a journalist before 2029.