‘Whether the case proceeds or not, it is just Trump’s latest excuse to punish reporters and news organizations.’ Photograph: Spencer Platt/Getty Images
James Risen
A decade ago, experts said I’d be the last reporter to face a subpoena in a leak investigation. How wrong they were
In 2015, after I won a seven-year battle with the federal government and refused its demands that I reveal my confidential sources for a story I wrote about a botched CIA operation, many media experts predicted that I would be the last journalist ever subpoenaed by the government in a leak investigation. They argued that new surveillance technology made it possible for the government to more readily identify sources inside the government without having to rely on the testimony of reporters. There was no longer any need for the government to go through the lengthy and bitter legal process of trying to haul reporters into court and threaten them with jail if they refused to reveal their sources.
Fast forward more than a decade, and it is obvious that those predictions from the experts were wrong. The notion that leak investigations are primarily designed to find leakers now seems quaint.
The New York Times reported earlier this month that the Trump administration has subpoenaed its reporters in a leak investigation related to a story about problems with the plane that Donald Trump received as a gift from Qatar.
One thing about this case is already clear: Donald Trump’s priority isn’t hunting down the sources for such a routine account of White House problems. What he appears to care most about is punishing reporters. Issuing subpoenas to reporters and threatening them with jail if they don’t reveal their sources is just one more weapon that Trump wants to use in his broad campaign to damage press freedom. That was underlined once again on Monday, after it was disclosed that the Trump administration has added a vicious legal tactic in this case by seeking not only to subpoena the phone records of the reporters involved in the story, but also the phone records of their family members going back months.
The most remarkable thing about this entire episode is the unremarkable nature of the New York Times story at the heart of the case. Trump flew to the recent Nato summit in Turkey on the Qatar-provided plane but left on the old Air Force One. The Times reported that there had been security problems with the Qatar plane that led to the switch. That’s the kind of story that is published on a daily basis in Washington. The administration’s claims that the story revealed sensitive national security information are laughable; Trump himself said on Monday that the plane needed to be “ maxed out ”.
This case is so specious that it should be quickly tossed out of court. But whether the case proceeds or not, it is just Trump’s latest excuse to punish reporters and news organizations. Prosecuting some government official whom no one has ever heard of wouldn’t satisfy him. (Alternatively, it is also possible that the source is someone in Trump’s inner circle, and Trump definitely wouldn’t want to prosecute someone who knows where all the bodies are buried in his administration.)
It’s clear he wants to go after the New York Times.
Such an obvious abuse of power has always been the danger behind leak investigations – that an autocratic president and a captive justice department, enabled by a puppet Congress, could misuse the legal process solely to imprison reporters and punish news organizations.
Draconian leak investigations like this one are a fairly recent phenomenon, and were a byproduct of the post-September 11 era. Before September 11 and the Iraq war, government leak investigations almost never led anywhere; they were usually quietly dropped by the government without any sources being prosecuted or journalists being subpoenaed. It wasn’t until the so-called Plame case, which began in 2003, that reporters began to face a real threat of being subpoenaed. The Plame case was a complicated episode involving stories in which the covert identity of a CIA officer was publicly disclosed; several reporters were subpoenaed to testify about who revealed the CIA officer’s identity. The case set a dangerous precedent by normalizing the aggressive use of leak investigations by the government, and they became common in the George W Bush, Obama and first Trump administrations. I was among the reporters embroiled in those legal fights.
Today, Trump may find his attacks on press freedom and efforts at censorship satisfying, but they are beginning to undermine his agenda in unintended ways. While Trump has been waging a war with Iran, he has found it nearly impossible to win public support for the war – at least in part because he has refused to tell the press what is going on. The war has started and stopped repeatedly with virtually no public explanation from Trump; he has mostly just offered boastful and callous social media posts. In addition, the Pentagon’s decision to keep reporters away from the war in order to avoid inconvenient questions about combat operations has had the unintended effect of making it impossible for the press to offer a full account of the actions of the US military personnel involved in the war. That means there are no narratives about the war for the public to embrace. Instead, the public has been left to fill in the blanks without much real information. The result is that the Iran war – the first in modern times without any significant press coverage – is the least popular war on record.
Even as Trump’s assault on the press continues, I still believe that my seven-year fight against the government was worthwhile. I do think it made government officials in several administrations more reluctant to subpoena other reporters for more than a decade. It is only because a would-be autocrat is now in the White House that all bets are off.
- James Risen is a Pulitzer prize-winning journalist
