President Trump's administration excels at muddying the water, and the arrest of a former Senate aide, following an inquiry in which federal agents seized records from a New York Times reporter, might be its best work yet.
On one level, the case is fodder for righteous outrage in the media. Many journalists were alarmed 10 months ago when Attorney General Jeff Sessions called a news conference to announce a crackdown on leaks and said: “One of the things we are doing is reviewing policies affecting media subpoenas. We respect the important role that the press plays and will give them respect, but it is not unlimited.”
In October, Sessions told the Senate Judiciary Committee he could not rule out jailing journalists who refuse to reveal their confidential sources.
“We always try to find an alternative ... to directly confronting a media person,” Sessions said. “But that's not a total, blanket protection.”
Investigating alleged leaks by the former Senate aide, James A. Wolfe, the FBI did not subpoena or imprison journalist Ali Watkins but instead seized her communication records without her knowledge — an intrusion into the reporter-source relationship that is often essential to accountability journalism.
Yet this particular reporter-source relationship was also a romantic one, a twist that introduces questions about journalism ethics and could buttress Trump's characterization of reporters as creatures of the Washington swamp who will do anything for scoops.
The media's footing on the high ground is not so stable here. The Daily Beast's Will Sommer encapsulated the complexity of the situation when he tweeted Thursday night the government “shouldn't be seizing reporters' communications. On the other hand: not a great look for the ol' Fourth Estate!”
Wolfe, 57, has been charged with lying to the FBI, which says he initially denied knowing Watkins before being confronted with photographs of the two of them together; he then admitted to a romantic relationship that began in 2014.
That year Watkins, then a 22-year-old senior at Temple University, helped McClatchy newspapers break a story related to the Senate Intelligence Committee. Wolfe was the committee's security director.
Temple boasted about Watkins's role in the scoop, at the time:
Journalism major Ali Watkins spent some of her internship at McClatchy DC News hanging around elevators and locked doors — but not because she was idle. Rather, she was establishing relationships with people who might serve as sources for stories. And in December 2013, her creative persistence paid off.
A breaking national story was the direct result of tips she received through unnamed sources with whom she has developed trusting relationships since she began reporting for McClatchy in May 2013.
Watkins's student email records were among those seized by the FBI during the investigation of Wolfe.
Thursday night on Twitter, New York Post columnist John Podheretz mocked Watkins's reporting.
Current and former colleagues of Watkins defended her work, however.
Andrew M. Seaman, who chairs the Society of Professional Journalists' ethics committee, argued for separating questions about a journalist's conduct from those about the propriety of FBI surveillance.
“SPJ's stance is that the code of journalism ethics are not and cannot be legally enforceable under the First Amendment to the U.S. Constitution,” Seaman told me. “As a result, they should not be used against journalists or news organizations in legal actions or proceedings.”
Jane E. Kirtley, a professor of media ethics and law at the University of Minnesota, said, “A romantic relationship seems to be 'noise,' not substance. I don't see any exceptions in the [attorney general] guidelines for situations where the reporter has a multidimensional relationship with her source. Certainly there are media ethics considerations here. It's hard to act independently, to use the SPJ code's words, if you are romantically involved with a source. But from a purely legal perspective, I don't think it is relevant, based on what we know now.”
Nevertheless, Kirtley added: “I do think the [Justice Department] acts strategically. They bring cases where the law is unsettled but do so when they think other factors will influence judges and the public.”