- Jameel Jafferfounding director of the Knight First Amendment Institute at Columbia University.
The New York Times has revealed shocking details about an unsuccessful attempt by the Trump administration, and then the Biden administration, to secretly obtain the email logs of four reporters at the newspaper. As part of the campaign, the Biden Justice Department placed a gag order on the Times in March to prevent many at the paper from even knowing about the request until a federal court lifted it. In recent weeks the Justice Department also disclosed the Trump administration had secretly obtained the call records of four journalists at the Times, as well as three journalists at The Washington Post and one at CNN. Jameel Jaffer, founding director of the Knight First Amendment Institute at Columbia University, says subpoenas for journalists’ records are “really troubling” because of their potential chilling effect on critical journalism. “It’s about the right of the public to have access to information about the government,” he says.
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AMY GOODMAN: I’m Amy Goodman. This is Democracy Now!
We turn now to look at a fight over press freedom. The New York Times has revealed shocking details about an unsuccessful attempt by the Trump administration — and then the Biden administration — to secretly obtain the email logs of four New York Times reporters. As part of the campaign, the Biden Justice Department placed a gag order on the Times in March to prevent many at the paper, including its executive editor, from even knowing about the request. The Times reported on the story Friday after a federal court lifted the gag order. In recent weeks the Justice Department also disclosed the Trump administration had secretly obtained the call records of four journalists at the Times, as well as three journalists at The Washington Post and one, Barbara Starr, at CNN.
On Saturday, the Justice Department reversed course and announced it’s changing its policy and will no longer force media companies to hand over source information as part of its leak investigations.
On Sunday, New York Times reporter Adam Goldman appeared on CNN’s Reliable Sources. His phone records were seized by both the Obama and Trump administrations.
ADAM GOLDMAN: It’s certainly disappointing, but I wasn’t surprised. Some of the same prosecutors who were involved in seizing my phone records earlier this year, and unsuccessfully trying get my emails, were involved in secretly obtaining my phone records in 2013 when I worked at the Associated Press. This office, the U.S. Attorney’s Office in D.C., has a history of trampling on the First Amendment. So that’s why I wasn’t surprised. They treat the media, they treat newspapers like drug gangs.
AMY GOODMAN: In late May, President Biden spoke out against the seizing of records from journalists at the very time when The New York Times was still under a gag order. He was questioned by CNN’s Kaitlan Collins.
KAITLAN COLLINS: [Should the government be] seizing reporters’ phone records and emails? And would you prevent your Justice Department from doing that?
PRESIDENT JOE BIDEN: Only yours. But beyond yours, OK, for them, no.
KAITLAN COLLINS: But honestly.
PRESIDENT JOE BIDEN: And we should — absolutely positively, it’s wrong. Simply, simply wrong.
KAITLAN COLLINS: So you won’t let your Justice Department do that?
PRESIDENT JOE BIDEN: I will not let that happen.
AMY GOODMAN: It was only this weekend that the Justice Department announced they would not do this.
We’re joined now by Jameel Jaffer, the founding director of the Knight First Amendment Institute at Columbia University, previously the deputy legal director at the ACLU.
Jameel, it’s great to have you back. Can you first respond to what we learned this weekend?
JAMEEL JAFFER: Yeah, sure. And thanks for inviting me.
I mean, I guess the first thing to say is that these kinds of subpoenas are really troubling for a number of reasons. It’s not so much about journalists’ rights; it’s about the right of the public to have access to information about the government. And if reporters’ sources are available to the government, then reporters won’t be able to get the information they need in order to write the stories we want them to write. So there’s a real concern that these kinds of subpoenas can have a chilling effect on journalism that is, you know, really necessary, journalism that goes to the ability of the public to hold government officials accountable for their decisions. So, that’s why I think these reports are so disturbing, these reports of Trump administration subpoenas directed at news organizations, intended to uncover the identities of reporters’ sources. And, you know, as your intro noted, we’ve seen now a number of these; just over the last few weeks, a number of these have come to light.
One sort of background fact that’s important to recognize here is that the Supreme Court hasn’t weighed in on this set of issues for 50 years. And the result is that whatever protections journalists have in this context are really a matter of executive grace. They’re a matter of what protections the Justice Department wants to give them, rather than what protections the First Amendment requires. The First Amendment is kind of strangely absent in this context. The relevant set of rules has come, over the last few years, at least, from the attorney general’s guidelines, which were strengthened under President Obama. Attorney General Holder tightened those restrictions — tightened those rules in some ways to make it slightly — not just slightly, more difficult for prosecutors to obtain reporters’ sources, the identities of reporters’ sources.
But even with that kind of tightening, the Justice Department has found it possible to serve these subpoenas, and not just serve these subpoenas, but this most recent report out of The New York Times involves not just a subpoena intended to obtain reporters’ phone and email records, or subpoenas meant to obtain those records, but a gag order on Times executives that prevented, initially, the Times's lawyer, David McCraw, from disclosing the fact of the subpoena and court order to other Times officials. And that, I think, is a kind of independent First Amendment problem, not just the subpoena directed — you know, intended to uncover the reporters' sources, but then a gag order that prevents the Times from sharing that kind of information even within the organization, let alone with the public.
AMY GOODMAN: And, of course, we don’t know if there are — though the Biden Justice Department says they’re not going to engage in these, whether there are any more of these gag orders out there, because people can’t talk about them. And what do you make of — I mean, Goldman and Matt Apuzzo had been — the Justice Department had gone after them both under the Obama administration — they worked for AP, and now they’re working at The New York Times — and him saying, “They treat us like drug gangs. They’re using the same laws”?
JAMEEL JAFFER: Yeah. Well, I mean, I do think that there’s a real risk here that people will come to see journalists as kind of extensions of law enforcement or extensions of the intelligence agencies, and then, you know, would-be sources won’t go to people like Apuzzo or Goldman with information that is crucial for the public to have. So I do think that the concerns are justified.
I know that President Biden has now said that his administration won’t tolerate these kinds of subpoenas, and the Justice Department has said that it’s going to implement that direction, which is obviously a good thing. You know, what I would say about that, though, just to temper it a little, number one, is, again, it’s really troubling that all of this is a matter of executive grace rather than constitutional law. There should be some set of rules, that is independent of whoever’s in office right now, that limits what kinds of information the Justice Department can get, and when, in these kinds of investigations.
But the other thing I’d say is just that there are real questions about implementation. You know, the definitions matter. Like, who counts as a journalist? What counts as a leak investigation? The attorney general’s guidelines have historically had exception for foreign intelligence investigations. And that means that subpoenas and court orders served under the Foreign Intelligence Surveillance Act or national security letters that are sometimes served on technology companies or telecoms, those are essentially exempt from the attorney general guidelines that were put in place under the Obama administration. So there’s a real question now — you know, great that the Biden administration seems willing to go in a different direction, but I think we should ask some questions about the precise scope of the commitment that the Justice Department has now made.
AMY GOODMAN: Would it be up to Congress to pass laws?
JAMEEL JAFFER: Yeah, well, you know, many states have shield laws that protect journalists when state law enforcement seeks access to their records. There is no federal shield law, so, you know, again, we have no background First Amendment law, or almost no background First Amendment law. There’s a 1972 case, Branzburg v. Hayes, which is the last time the Supreme Court weighed in, in this context. But that case is very, very muddy, sort of notoriously muddy. It doesn’t really give journalists any kind of real confidence that their records can be kept secret. So you’ve got that, and, on the other hand, you have no federal shield law. There’s no congressionally enacted protections for journalists.
So, again, what that leaves journalists with is really just whatever protections the Justice Department wants to give. And I don’t think that’s really defensible in a society that is committed to press freedom. You know, you can’t call yourself a society that’s committed to press freedom if the only press freedom that exists is the press freedom that the government wants to provide or the executive branch wants to provide.