Subpoenas have begun to fly over reporting on the Iran military campaign.
Subpoenas have begun to fly over reporting on the Iran military campaign.
A battle looms over the Justice Department’s issuance of grand jury subpoenas to journalists.
The Wall Street Journal reported on Monday that it has received subpoenas, dated March 4, for the records of some of its reporters. The subpoenas relate to leaks connected to a February 23 WSJ article (i.e., six days before the U.S. and Israel attacked Iran), which reported that General Dan Caine, the chairman of the Joint Chiefs of Staff who has been central to planning the war against Iran and explaining developments to the public, admonished President Trump about serious risks the contemplated military campaign portended. The WSJ reporters — Alexander Ward, Lara Seligman, and Shelby Holliday — described their sources as “current and former officials” but did not name them. The report elaborated that other Pentagon leaders had similar concerns; General Caine, however, was the most prominent voice.
The article reported that the Trump administration was considering a range of military options that included “a dayslong aerial campaign aimed at toppling the regime.” Not mentioned is any discussion about whether it was realistic to believe the deeply entrenched, revolutionary jihadist regime could be ousted by a few days of bombing, let alone in the absence of ground combat.
Although the WSJ report did not specifically allude to the possibility that the Iranian regime might close the Strait of Hormuz, it did note the regime’s threat to sink a U.S. warship; and other reporting, such as this New York Times article, has asserted that General Caine “flagged the risks of Iran blocking the strait” in multiple “White House Situation Room meetings with the president.”
The prewar WSJ article listed other risks that have since become realities, such as Iranian attacks on American military installations, Israeli population centers, and Arab states described as America’s “regional partners.” Also emphasized was the danger that an operation of even short duration — a couple of weeks — would significantly deplete U.S. defense stockpiles, particularly interceptors and other air-defense munitions.
At the time, the WSJ stated that President Trump had not made up his mind about whether to attack Iran. It elaborated, however, that the president had taken to Truth Social to counter any impression that the Joint Chiefs chairman opposed the use of force or feared it would be difficult to prevail: “General Caine, like all of us, would like not to see War but, if a decision is made on going against Iran at a Military level, it is his opinion that it will be something easily won.”
This past Monday’s WSJ report (by three different reporters) recounts that the February 23 article angered the president. He complained to Todd Blanche, who was then deputy attorney general (and is now acting AG). When the March 4 subpoenas for the reporters’ records were issued to the WSJ, the AG was Pam Bondi (she was pushed out on April 2). Under DOJ guidelines (which I’ll come to), Bondi would have to have approved the subpoenas, although Blanche is now responsible for deciding which investigative tactics DOJ prosecutors throughout the country use to compel evidence or testimony from journalists.
The WSJ was not singled out. Its February 23 report acknowledged that Caine’s cautionary posture was first reported by Axios; and the Monday WSJ news article relates that reporters from both Axios and the Washington Post have been subpoenaed.
I last discussed the Justice Department’s procedures regarding the compulsion of information from journalists earlier this year, when the FBI searched the home of a Washington Post reporter pursuant to a court-issued warrant. It is worth revisiting those procedures and some recent history about them.
The First Amendment prohibits laws abridging the freedom of the press. Essentially, that means there can be no prior restraints against publication; it does not mean the press has immunity from investigation. Our law’s general mandate is that people with relevant information can be required to testify in the grand jury unless they have some legally recognized confidentiality privilege. Unlike relationships as to which such privileges have been granted (e.g., spousal, attorney/client, doctor/patient, and priest/penitent), there is no reporter/source privilege.
Legal action may be taken against media members post-publication. They may, for example, be sued for libel if they defame people (although there are high barriers against such suits when brought by public figures). Reporters can also theoretically be prosecuted for abetting the unauthorized dissemination of national defense information; but such prosecutions are historically rare. The DOJ generally regards government officials who leak as the criminal culprits; reporters are seen as witnesses. Obviously, this is cold comfort to reporters, since an official’s willingness to share information with them hinges on the understanding that no reporter will disclose a source’s identity. Of course, reporters make that commitment fully aware that it is not legally enforceable. Reporters are thus occasionally jailed for contempt of court upon defying subpoena demands that they reveal sources.
It is only natural that fellow journalists will portray such a defiant reporter as a hero, not a lawbreaker. With considerable force, they contend that reporting about government action, particularly in the national security realm, is the most essential journalism in a free republic. I don’t disagree, but the point is incomplete. Secrecy is also essential to national security; officials who compromise it criminally endanger the nation (in addition to violating their oath and the contractual vow they make in order to get privileged access to defense secrets). That’s why I’ve always opposed a categorical reporter/source privilege — albeit with the understanding that the DOJ guidelines, which are so favorable to journalists that prosecutors usually don’t even ask for permission to issue subpoenas, will be enforced in good faith, such that reporters will be subpoenaed only as a last resort in truly important cases.
In any event, the Supreme Court has ruled that there is no confidentiality privilege. (See Branzburg v. Hayes (1972).) Journalists and their advocates have thus tried, without success, to pressure Congress to enact press shield laws that would make communications with sources — traditional news gathering — confidential.
As suggested above, the Justice Department’s internal regulations are a big part of why reporters’ shield proposals have failed. Under the federal regulatory policy (28 CFR §50.10) and the DOJ Manual (§9-13.400), the AG’s approval is necessary for compulsory legal process involving journalists — a line prosecutor, or even a presidentially appointed district U.S. attorney, may not do it. The guidelines require serious grounds to believe a crime has occurred; the information at issue must be significant; there should generally first be an attempt to secure voluntary compliance with the government’s information request; subpoenas must be narrowly drawn; and prosecutors must exhaust reasonable alternative avenues before seeking the information from the press. Based on nearly 20 years as a federal prosecutor, I can attest that the DOJ took these guidelines quite seriously, which had the downstream effect that district U.S. attorneys’ offices took them seriously, too, and generally didn’t ask unless there was a good reason.
Alas, the Justice Department has gotten increasingly politicized since the Obama era. When that becomes your ethos, everything changes — and nothing for the better.
In 2009, the Obama Justice Department stoked a major controversy by investigating James Rosen, then a reporter at Fox News, as if he were a potential criminal co-conspirator in an Espionage Act violation after his reporting about classified information involving North Korean nukes. The Obama DOJ also secretly hoovered up phone records of Associated Press reporters and editors after the AP’s 2012 disclosure of tightly held intelligence about a CIA operation in Yemen to disrupt a planned plane bombing by al-Qaeda. Subsequently, the first Trump administration covertly obtained phone records for reporters from the Washington Post, the New York Times, and CNN, mainly (but not exclusively) over their Russiagate coverage, to the consternation of those outlets and other journalists.
In the aftermath, consistent with the Biden administration’s knee-jerk determination to be the anti-Trump, AG Merrick Garland overcorrected. He implemented a categorical prohibition on prosecutors’ acquisition of records regarding reporters’ contacts with sources, so long as the journalists were engaged in “newsgathering” — defined to include the receipt, possession, and publication of classified information. This meant, for example, that any journalist (even a Julian Assange-type pseudo journalist) who encouraged a government official to purloin vital national defense intelligence, enabling its publication for the benefit of America’s enemies, would be immune not merely from prosecution but from investigation — rendering it far more difficult to identify government leakers who were actively undermining national security.
After Trump returned to office in 2025, AG Bondi reversed Garland’s policy. In this, she was entirely correct: No attorney general had gone as far as Garland, notwithstanding that most of them have respected freedom of the press and properly policed against unnecessary prosecutorial intrusions on reporting. The First Amendment and statutory law did not require it and, from a policy perspective, the DOJ has to be able to compel information from journalists in truly dire circumstances.
But of course, any government power can be abused, none more so than national security power, which must unavoidably be wielded covertly. It is always appropriate for the media to scrutinize government action and policy in the fraught realms of foreign affairs and defense. These involve the most consequential security matters, and the public needs to be as informed about them as prudence allows. But again, secrecy is essential; there can be no security against capable, hostile actors without it.
Therefore, the question always hovers: Is the incumbent administration seeking to track down leakers because they are harming the country, such that the media’s interest in protecting sources should be subordinated to national security? Or is the administration using national security as a pretext to shield government officials — potentially including the president — from public discovery of errors in judgment, embarrassing details, illegality, or even corruption, such that the media should not be harassed or obstructed?
The WSJ’s reporting on the run-up to the Iran war, like the reporting of Axios, the WaPo, and other press outlets, did not expose any vital defense secrets. Trump himself was on Truth Social nonstop at the time (as the WSJ article reported) beating the war drums and warning Tehran that there would be grave consequences if it defied him. The high risks of starting a shooting war against Iran were well known; anyone interested enough could corral them online in less than a half hour. And it was no mystery that a major part of the Joint Chiefs chairman’s job is to keep the president informed about threats and the capacity of our armed forces to overcome them.
The upshot of the February 23 reporting was not that there were risks. It was that President Trump was fully informed about the risks before green-lighting the aerial invasion yet appears to have plunged ahead in the delusional conviction that Iran would rapidly surrender and it would all be over in a few days. (I say that as someone who has supported the military action against Iran but who has consistently maintained that Trump does not grasp Iran’s apocalyptic Islamic ideology, that the regime would rabidly fight for its survival, and that it was absurd to believe the war — assuming only aerial poundings with no ground operations — could be wrapped up in four to six weeks on America’s terms.)
Regardless of what happens in Iran, it appears that the Trump DOJ is going to war with the press — flexing its muscles to squeeze reporters into giving up their sources, threatening to imprison them if they don’t. I would just offer this caution: The reason press-shield legislation has not gotten traction, even though we’ve always had tension between the public’s security and its need to be informed, is that the DOJ has generally been seen as a responsible arbiter of that tension. Not always, but generally. As the executive branch has become more imperious during the past 20 years, that assumption has eroded. I suspect we’re about to see whether there’s anything left of it.
For all his “enemy of the people” banter, President Trump hasn’t gone full lawfare on the media, as he has against other political opponents. He recognizes that journalists have leverage — there has never been a president who so craved their approbation even as he excoriates them. But once the subpoenas start to fly, as they now have, harder battle lines are drawn.