It was never a question of “if.”
It was always a matter of “when.”
The seizure of a New York Times reporter’s phone and email records has sent a chill down the spine of every reporter concerned about protecting his or her sources.
That means every serious reporter — especially those in Washington who report on politics and national security.
It is disturbing because reporters need to be able to do their jobs, unfettered. But absolutely no one should be surprised.
First off, the Trump administration has been all too clear about its scorn for established press rights — with the president himself boasting about how he’d love to change libel-law protections and speculating about locking up reporters.
His attorney general, Jeff Sessions, ducked questions early on about whether he would ever agree to subpoena a reporter in a leak investigation.
The signs were all there.
“I’ve been warning reporters to take care as this administration rattled it would go after sources like the previous one,” wrote New York Times reporter Adam Goldman on Twitter shortly after the news broke Thursday night that a former staff member of the Senate Intelligence Committee has been indicted and arrested on charges of making false statements to the FBI during a leak investigation.
But Trump’s anti-press bluster aside, there’s a clear blueprint to follow — courtesy of Barack Obama, who once claimed that he would be the most transparent president ever but proved to be no friend to press rights.
As part of the new investigation, law enforcement officials seized years’ worth of phone and email records of Times reporter Ali Watkins, who had previously dated the Senate staffer. Watkins had reported for BuzzFeed and Politico before being hired by the Times.
BuzzFeed editor Ben Smith described the seizure in stark terms as “what looks like a case of law enforcement interfering with a reporter’s constitutional right to gather information about her own government.”
Under Obama, the Justice Department subpoenaed the telephone records of AP journalists as investigators pursued a leak.
It also went after Fox News reporter James Rosen and named him as a “co-conspirator” in a leak about North Korea’s nuclear program.
And James Risen, then a New York Times reporter, struggled for years to avoid testifying about his confidential source during the leak investigation of Jeffrey Sterling, a former CIA officer.
Risen told me that he had thought, for a time, that the Obama administration would drop the efforts to pursue him that were begun during the George W. Bush administration, but that never happened. If anything, they ramped up.
But the pursuit of Rosen may have been the most extreme of all the Obama-era cases.
The Justice Department used security badge access records to track his comings and goings from the State Department, The Washington Post wrote at the time: “They traced the timing of his calls with a State Department security adviser suspected of sharing the classified report. They obtained a search warrant for the reporter’s personal emails.”
Eventually, the pursuit of Rosen was dropped, as was the government’s characterization of him as a co-conspirator. Eventually, Risen was let off the hook, too.
But what happened under Obama set an ominous tone for reporters who were trying to do their jobs of informing the public.
So did the Obama administration’s record-breaking use of an arcane century-old law — the Espionage Act — which it used nine times to pursue leakers.
“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,” Risen wrote shortly after Trump’s election.
Later in Obama’s second term, perhaps aware of how history would judge this unsavory part of his presidential record, the administration backed off its aggressive pursuit of reporters’ sources.
They began to play nice.
New Justice Department guidelines were agreed upon after collaborative discussions between the department and members of the press. The rules require government investigators to have “made all reasonable attempts to obtain the information from alternative, non-media sources” before they may go after reporters’ records. (It’s unclear whether that happened in the current case.)
And Obama’s attorney general, Eric Holder, eventually said publicly that he never wanted journalists to go to jail for doing their work.
Neither did the nation’s founders, which is why the U.S. Constitution includes the First Amendment — a powerful protection but one that is open to interpretation and real-life norms.
Despite the Obama endgame, no one could erase what had happened. The dangerous precedent was set.
On Friday, Risen put out a statement in his new role as director of the First Look Press Freedom Defense Fund, calling the move against the Times reporter “an ominous step toward a more authoritarian approach to the press by a White House that has already made it clear that it is at war with journalists who are performing the daily public service of keeping Americans informed.”
Given Trump’s constant bashing of what he calls the “fake news media” — meaning the mainstream press — and his characterizations of reporters as “scum,” Thursday’s news was predictable. Sessions has said that his department has opened three times as many leak investigations as were open at the end of the Obama administration.
That doesn’t make this development any less troubling from a press-rights standpoint.
But no one can claim to be shocked.
For more by Margaret Sullivan visit wapo.st/sullivan