The objective is likely to identify leakers with an eye toward firing them.
The objective is likely to identify leakers with an eye toward firing them.
I t is being reported in various outlets that, this morning, the FBI executed a search warrant at the home of Washington Post reporter Hannah Natanson. The bureau is said to have been searching for classified documents.
Natanson has been covering the Trump administration’s crusade to overhaul the federal government, mainly by bringing agencies under more direct executive control, firing federal workers despite congressional civil service protections (whose legality the administration disputes), and training the workforce on Trump priorities at the expense of what had been their missions. Just three weeks ago, Natanson wrote a provocative report titled, “I am The Post’s ‘federal government whisperer.’ It’s been brutal.” In it, she reproduced messages she had received from hundreds of federal employees.
I suspect that the Justice Department believes, based on what she’s published, that some aspects of the information confided in Natanson has been classified. More to the point, the administration obviously decided that, if given the opportunity to search Natanson’s home, investigators would be able to identify government employees who have been passing her information — classified or not.
Hence, the objective is likely to identify leakers with an eye toward firing them, and to achieve an in terrorem effect on other government employees who might be inclined to pass information along to the media. I doubt the Justice Department is trying to make a criminal case against Natanson herself — although that cannot be ruled out.
This is a developing story. For now, I’d make two points.
First, let’s remember — as the press was quick to remind everyone when the FBI searched Trump’s Mar-a-Lago resort in August 2022 — that the agents had a search warrant. That means, prior to the search, a detached judge (likely, a magistrate judge in the District of Columbia) found probable cause to believe federal crimes had been committed and evidence of those crimes would be found in Natanson’s home. (Obviously, we haven’t seen the warrant at this point; the only crime I’ve seen mentioned so far is dissemination of classified information.)
To be sure, when the government seeks a warrant, the court does not get the investigative subject’s side of the story. Still, it’s not like the FBI just barged in. They first had to get permission from an independent judicial official who does not work for the Trump administration (in a district in which the bench is generally hostile to Trump). So let’s bear that in mind before drawing any extravagant conclusions about insidious government misconduct. As readers know, I am not averse to the neon highlighting of such abuses of power; this could well be another one of them. That said, if this was a malevolent exercise — if, say, misrepresentations were made to convince the court to issue a search warrant — there will be time to probe that going forward. For now, though, we must assume the judge would not have issued the warrant absent evidence of wrongdoing.
Second, under the First Amendment, we have a free press and there can be no prior restraints against publication by journalists of what they learn in their inquiries. Sure, it is theoretically possible that journalists can be prosecuted for knowingly disclosing national defense information that has been unlawfully leaked to them (the Espionage Act contains no carve-outs for the media); yet, it is highly unlikely that the Justice Department would test that proposition in an actual case. Bear in mind, however, that journalists do not enjoy a confidentiality privilege. That is why, for example, some reporters have been imprisoned for contempt for failing to reveal sources. Reporters customarily promise their sources confidentiality to induce them to reveal information, but these promises are not legally enforceable.
Historically, the Justice Department’s practice (and procedure under Section 9-13.400(3) of the DOJ Manual) has been to refrain from coercing the production of information from journalists — by subpoena or court-authorized search — unless (a) that information is essential to solving some serious crime, and (b) there are no other alternative avenues for obtaining the information. That eliminates reporters as witnesses or investigative subjects in the vast majority of situations. But understand: This is a prudential DOJ guideline informed by the First Amendment’s express endorsement of “freedom . . . of the press.” It is not mandated by the Constitution or any statute.
As with much else, that means that if the Trump Justice Department decides the president’s personal priorities outweigh the preservation of law enforcement norms, then you can kiss those norms goodbye and we are in a very different world. To state the obvious: The Supreme Court has taken pains not to fabricate a confidentiality privilege for journalists, in large part, because it knows the Justice Department does not materially threaten freedom of the press. Congress, which could enact a press shield, has followed suit for the same reason. If the Justice Department has changed, I suspect the law will change, too. And that would not be a healthy development because, in some exceptional cases, it is necessary to compel journalists to reveal information — just as every other American citizen is obliged to do.