Former president Barack Obama in Chicago in December. (Charles Rex Arbogast/AP)
Media critic

Perhaps there is no one more familiar with the strong-armed tactics of the U.S. national-security establishment than James Risen, the long-serving New York Times reporter who’s now with the Intercept. In a well-documented saga, Risen fought a seven-year court battle against government attempts to compel his testimony in a leak case against ex-CIA officer Jeffrey Sterling. Though the government won the case against Sterling, it didn’t ultimately force Risen’s testimony.

Even so, Risen had experienced firsthand the Obama administration’s scorched-earth stance on leaks. Weeks before President Barack Obama was to leave office, Risen wrote in the Times, “If Donald J. Trump decides as president to throw a whistle-blower in jail for trying to talk to a reporter, or gets the F.B.I. to spy on a journalist, he will have one man to thank for bequeathing him such expansive power: Barack Obama.”

What prescience. On Thursday night, the New York Times reported that years’ worth of the phone and email records of Ali Watkins, a reporter for the newspaper, were seized in a case involving 57-year-old James Wolfe, the former director of security for the Senate Intelligence Committee. (The content of those records was not accessed.) Written by Adam GoldmanNicholas Fandos and Katie Benner, the Times story also discloses that Watkins had been in a three-year relationship with Wolfe. The indictment in the case charges Wolfe with lying to FBI investigators about his contacts with reporters.

Per the indictment: “From in or around mid-2014 through in or around December 2017, WOLFE and REPORTER #2 [Watkins] exchanged tens of thousands of electronic communications, often including daily texts and phone calls, and they frequently met in person at a variety of locations including Hart Senate Office Building stairwells, restaurants, and REPORTER #2’s apartment.” At one point during the investigation, the FBI pressed Wolfe on a story written by Watkins that contained information provided to the Senate Intelligence Committee. After denying knowledge of the sourcing, the FBI showed Wolfe pictures of him and Watkins. Faced with such evidence, Wolfe admitted lying to agents, but insisted that he hadn’t shared “classified information or information that he learned as Director of Security for the [committee] that was not otherwise publicly available,” according to the indictment.

During a brief phone call, Watkins declined to answer questions, referring the Erik Wemple Blog to a statement from the New York Times, which reads in part, “Freedom of the press is a cornerstone of democracy, and communications between journalists and their sources demand protection,” noted New York Times spokeswoman Eileen Murphy. In an email to the Erik Wemple Blog, New York Times Executive Editor Dean Baquet wrote, “this is a troublesome development, that the government would dig into a journalist’s records this way.”

The indictment is notable for what it’s missing. Here we have what the New York Times calls a “leak case” with no charges for leaking. The three counts collectively charge Wolfe for lying to investigators about his contacts with Watkins and other reporters. That said, the indictment is expansive about what Wolfe allegedly lied about: According to the document, Wolfe said he “did not disclose to REPORTER #2 information that he learned as Director of Security for the Senate Select Committee on Intelligence that was not otherwise publicly available, when in truth and in fact, and as he then well knew and believed, WOLFE did disclose such information to REPORTER #2.”

As New York Times reporter Charlie Savage writes in his book “Power Wars: Inside Obama’s Post-9/11 Presidency,” indictments are a very modern way of dealing with loose-lipped government officials. “In the past, when an official was suspected of leaking, it was handled differently. The official might find himself cut out of the loop and not invited to the key meetings. He might get a letter of reprimand in his file,” writes Savage. “He might even lose his security clearance and be fired. But it was virtually unheard of, until very recently, for the government to treat as a crime the unauthorized public disclosure of military and intelligence information.”

The concerted application of criminal investigations to this activity, writes Savage, finds its roots in the George W. Bush administration, whose Justice Department commissioned a task force under the direction of prosecutor Steven Tyrrell to pursue leakers. Among its early obsession was tracking down those who assisted Risen and fellow New York Times reporter Eric Lichtblau for their stunning 2005 scoop on Bush’s warrantless wiretapping program. The work of the task force would provide the Obama administration a head start in racking up around ten leak prosecutions — more than the tally of all previous administrations combined.

The Obama adminstration’s aggressiveness on this front mushroomed into a scandal in spring 2013, as revelations surfaced that the Justice Department had subpoenaed two months’ worth of phone records of Associated Press journalists, and that it had named James Rosen, then of Fox News, as a potential co-conspirator in a criminal leak as it pursued his reportorial records.

Which is to say that entangling the media in leak investigations isn’t a Trump-era outrage; there’s nothing here for Trump to “normalize.”

Howls of protest from media executives — not to mention a spontaneous ambient outrage — led Obama’s Justice Department to revise its policies for seeking to journalists’ records. The policies sought to protect news organizations from arbitrary actions, dubbing the pursuit of media records as “extraordinary measures, not standard investigatory practices.” The policy also laid down three conditions under which Justice Department officials may proceed with trying to access reporters’ records: that the information sought is “essential” to the proceeding; that “all reasonable alternative attempts have been made to obtain the information from alternative sources”; and that the effort follows negotiations with the affected media outlet — though the attorney general may grant an exception to this rule.

According to the New York Times, Watkins was not notified in advance of the seizure of her communications records. The seizure netted “years” of customer records from two email accounts and a phone number. Was that really necessary? Though it seems heavy-handed, it is best to postpone judgment. “It’s hard to say, but the breadth and time-frame of the records compiled and the failure to disclosure the collection to the reporter raise concerns,” notes Suzanne Nossel, the chief executive of PEN America, in an email. “The DOJ’s own guidelines are clear that seizing a reporter’s records must be a last resort, so a key question is what other avenues were pursued and how assiduously.”

A key fact, meanwhile, is that law enforcement — without notifying the reporter — secured records of her electronic communications. With that information, agents were able to establish sequences like this one, from the indictment:

18. On or about March 17, 2017, the Classified Document was transported to the SSCI. As Director of Security, WOLFE received, maintained, and managed the Classified Document on behalf of the SSCI.

19. On or about March 17, 2017, WOLFE exchanged 82 text messages with REPORTER #2, and that evening engaged in a 28-minute phone call with REPORTER #2.

20. On or about April 3,2017, a news organization published an online article, under REPORTER #2’s byline, that revealed the identity of MALE-I.

a. On or about that same date, both before and after the online news article was published, WOLFE and REPORTER #2 exchanged approximately 124 electronic communications.

b. Approximately 20 minutes after the online news article was published, WOLFE and REPORTER #2 had a cellphone call that lasted 7 minutes.

That April 3, 2017, BuzzFeed published an article written by Watkins with the news that former Trump campaign adviser Carter Page had met with a Russian operative in 2013. (Watkins has also worked for McClatchy, the Huffington Post and Politico in addition to BuzzFeed and the Times).

A list of some of the folks entitled to be worried by this indictment:

  • Any and all sources of Watkins going back years
  • Any and all reporters who may have corresponded with Wolfe
  • Any and all sources interested in spotlighting malfeasance in the federal government
  • Any and all people who want information that the government controls.

On the other side stands the Trump administration, which views leak investigations as a wholesome pursuit — so wholesome that Attorney General Jeff Sessions said his people were pursuing three times the number of such inquiries as during the Obama administration. The president himself cheers such investigations, and even once suggested to then-FBI Director James B. Comey that journalists be jailed for dealing in leaked material. The Supreme Court wouldn’t stand for such a move. Instead, the president will have to settle for what the Wolfe case presents: A reporter who’s not charged with any crime but whose work suffers from federal intrusions, and an industry whose suppliers have fresh reason to worry — outcomes that should please the greatest enemy of the First Amendment ever to occupy the White House.