As Donald Trump gears up for a potential return to the White House next year, there’s a lot of chatter about what his second term could mean for press freedom. It’s hard to say for certain, but we can glean some insights by looking back at his previous time in office.
If history is any guide, tensions could flare between the new administration and journalists, especially regarding national security “leaks.” Such conflicts could have a cooling effect on sources willing to share crucial information with the public, leaving Americans less informed and government actions less scrutinized.
In the last four years, things have been relatively calm in this area. However, it’s worth noting that during Trump’s first term, his administration continued and expanded on the Obama administration’s vigorous efforts to track down individuals leaking government secrets to the press.
Throughout his campaign, Trump has often condemned national security leaks, pushing for intense investigations and prosecutions. It would be naive for advocates of press freedom to dismiss the possibility of a similar, if not more aggressive, approach this time around.
Several federal laws could potentially be used to criminalize the public disclosure of national security information, with the Espionage Act of 1917 being one of the most notable. Originally intended to curb domestic opposition during World War I, it broadly encompasses the act of transmitting “information relating to the national defense” to unauthorized individuals.
In practical terms, if someone were to drop a manila envelope containing sensitive information at a reporter’s doorstep, the Justice Department maintains that it has the power to prosecute both the source and the journalist, without any “public interest” defense to shield them.
Historically, the Espionage Act was seldom used against journalists or their sources, focusing primarily on actual spies. There were a few notable exceptions, like the Pentagon Papers case, but these instances were rare. Despite numerous investigations involving members of the press, no journalist or news organization faced charges under the Espionage Act during that period.
The reasoning behind this restraint is straightforward. Legal action against those reporting in the public interest would likely ignite a “political firestorm,” as a federal appeals court judge once commented on a case involving secret photos.
However, the administrations of George W. Bush and Barack Obama marked significant departures from this tradition. Under Bush, the Justice Department pursued the first Espionage Act cases against non-government individuals — those who hadn’t pledged to keep government secrets. This era also included the Valerie Plame incident, which led to New York Times journalist Judith Miller spending 85 days in jail to protect a confidential source, and the pursuit of another leak case involving Times reporter James Risen.
Under Obama, charges against journalists’ sources under the Espionage Act became more common, with about ten such cases — more than all previous presidents combined. Trump’s first term extended this trajectory, with the Justice Department filing eight cases against sources, including Julian Assange, whose charges were partly based on the contentious argument that publishing secrets is illegal.
These cases sometimes involved secret demands for journalists’ records and communications with sources, potentially exposing other sensitive investigations. This could severely undermine the reporters’ ability to gather news without government interference. As Miller once put it, “If journalists cannot be trusted to keep confidences, then journalists cannot function, and there cannot be a free press.”
During Trump’s first term, the Justice Department accelerated these efforts. They seized years of phone and email records from reporter Ali Watkins, even using threats to extract information about her sources.
In the early part of Biden’s presidency, it came to light that towards the end of Trump’s term, the Justice Department authorized the collection of phone and email records from reporters at CNN, the New York Times, and the Washington Post. These actions were taken without notifying the outlets, denying them the opportunity to challenge the demands, and were accompanied by gag orders.
The pattern of investigating leaks has persisted through the administrations of Presidents Bush, Obama, and Trump, demonstrating that threats to press freedom are not confined to one political party or leader. Biden’s presidency has been an outlier, but this respite might only be temporary.
Gabe Rottman serves as the policy director at the Reporters Committee for Freedom of the Press.
