If this is a retreat from a government effort to influence coverage, it would be prudent and welcome.
The Trump Justice Department has quietly dropped its initiative to force journalists to testify about their sources in leak investigations.
Last month, I related that the DOJ had issued subpoenas to reporters from the Wall Street Journal, the Washington Post, and Axios. In the days prior to the commencement of the war against Iran that President Trump launched on February 28, they reported that the president had been admonished by military and national security officials about potential consequences, including that the regime in Tehran could close the Strait of Hormuz and conduct aerial strikes against America’s Arab allies in the Persian Gulf region.
Despite the significant U.S. military success in degrading the regime, it was able survive, and its closure of the strait and aggression against the Arabs ultimately induced the president to end the war on terms stunningly favorable to Iran. As I observed in the column last month, the press reporting in question did not divulge any vital American national security secrets; indeed, much of it was driven by the social media posts of Trump and other administration officials. But it did anger the president, who complained to then-Deputy Attorney General Todd Blanche (who is now the acting attorney general). The DOJ’s issuance of the subpoenas promptly followed.
In the ensuing weeks, the media outlets fought the subpoenas in federal court in Alexandria (the Eastern District of Virginia). That litigation is under seal because it relates to grand jury proceedings, which are secret under federal law. (See Rule 6(e), Fed.R.Crim.P.) This morning, however, the WaPo reported that the DOJ has withdrawn the subpoenas. None of the reporters ended up testifying, and they are not scheduled to do so.
To repeat what I opined last month, the Supreme Court has held that there is no reporter-source confidentiality privilege. (See Branzburg v. Hayes (1972).) Journalists frequently promise their sources confidentiality, but the promise is not legally enforceable. That said, the First Amendment explicitly ensures freedom of the press (no prior restraints against news publication) in order to prevent suppression of information that the government would rather bury because it exposes incompetence, abuse, or illegality. For this reason, the government generally conducts investigations, including those involving illegal disclosures of information, without interfering with the media. And the Constitution aside, prosecutors have legal power to compel testimony and the production of other evidence; the vast majority of the time, they shouldn’t need to pry into journalists’ work.
That said, there are rare but extremely serious cases involving threats in which a journalist’s testimony could be vital. Occasionally, the government uses this opening as a pretext to seek information from reporters when doing so is unnecessary, or with a malevolent purpose to intimidate and influence coverage, not to investigate. For that reason, legislative proposals for a press shield law pop up from time to time. The government has been able to fight these off because the DOJ has traditionally been strict in enforcing its internal guidelines, which only rarely permit federal prosecutors to subpoena reporters.
That could change if the DOJ shifts its approach from prioritizing investigations of serious crimes to protecting the president and the administration from unfavorable coverage. If the withdrawal of the subpoenas marks a retreat from the latter, that would be prudent law enforcement — even if not everyone at the White House sees it that way.