Despite the Trump regime’s ongoing attempts to dismantle the First Amendment, there are important checks that remain in place. Libel protections against frivolous lawsuits remain strong — as long as news organizations use them rather than caving in to Donald Trump’s threats. Prior restraint is almost unheard of.
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One aspect of press freedom that has been left outside the walls of the First Amendment, though, is a recognition that journalists need to protect their anonymous sources and confidential documents. Forty-nine states, including Massachusetts, provide some protection. But the federal government does not. And one of former Attorney General Pam Bondi’s first actions after Trump returned to the White House was to weaken Justice Department guidelines put in place by her predecessor, Merrick Garland, to make it easier for the government to demand access to that information.
Now, to mix some metaphors, FBI Director Kash Patel is driving a truck through that loophole. On Wednesday, Ken DilanianCarol Leonnig reported for MS NOW that the FBI had opened a criminal investigation to determine who had leaked information to The Atlantic that Patel is undisciplined, out of control and frequently drinks to excess. That story, reported by Sarah Fitzpatrick, led to a libel suit by Patel. Few legal observers give the suit much chance of advancing; the story was based on information provided by some two dozen anonymous sources, and none has come forward to dispute Fitzpatrick’s account.
The criminal case, though, would allow Patel to mix his personal lawsuit with official business, forcing Fitzpatrick and The Atlantic to provide information as part of a criminal investigation that he could then use to pursue his lawsuit — or harass, intimidate and fire Fitzpatrick’s sources, which is probably his real aim. The Atlantic’s editor, Jeffrey Goldberg, was quoted in the MS NOW story as saying:
We will have further comment when we learn more. If true, this would be an outrageous, illegal, and dangerous attack on the free press and the First Amendment. We will defend Sarah and all of our reporters who are subjected to government harassment simply for pursuing the truth.
Unfortunately for Patel, what you might call circumstantial evidence in Fitzpatrick’s defense emerged Wednesday in the form of a follow-up article in which it was reported that Patel has made a habit of handing out bottles of Woodford Reserve bourbon embossed with his name, his title and the FBI seal. Fitzpatrick writes:
Patel has given out bottles of his personalized whiskey to FBI staff as well as civilians he encounters in his duties, according to eight people, including current and former FBI and Department of Justice employees and others who are familiar with Patel’s distribution of the bottles. Most of them spoke on the condition of anonymity out of fear of reprisal.
Patel has distributed his self-branded bottles while on official business, including during at least one FBI event. He and his team have transported the whiskey using a DOJ plane, including when he went to Milan during the Olympics in February. One of the bottles was left behind in a locker room, according to a person who was there.
The FBI’s abuse of criminal laws to ferret out Fitzpatrick’s sources is not an isolated incident. As I’ve noted several times, the FBI raided the apartment of Washington Post reporter Hannah Natanson in January in an attempt to identify sources who had provided her with information about Elon Musk’s DOGE wilding spree through the federal bureaucracy.
Of course, it’s not unheard-of for federal investigators to demand that reporters turn over their sources. Journalists were threatened with jail during Barack Obama’s presidency, and a New York Times reporter, Judith Miller, actually served time after she refused to give up a source during the George W. Bush years. (Miller ran afoul of a special prosecutor who was investigating leaks by Bush officials.)
But the standard procedure for prosecutors is to go to court, tell a judge why they should be entitled to learn the identity of confidential sources, and let the journalist make a case as to why they shouldn’t. In the Natanson matter, the Justice Department obtained a search warrant and executed it without giving her or her newspaper a chance to argue against it. The judge who granted that search warrant later admonished the government for withholding information about a law that made searches targeting journalists illegal except in emergencies or when the journalists themselves are accused of breaking the law.
Natanson this week was honored as part of a team of Washington Post reporters with the Pulitzer Prize for Public Service. And two judges have barred the government from searching the devices that were seized, which, as Ashleigh Fields reports in The Hill, included “two computers, a recorder, Garmin watch, phone and a portable hard drive.”
The FBI is also at the heart of a third case that threatens press freedom. Last month, The New York Times reported that the FBI was investigating one of its reporters, Elizabeth Williamson, after she reported that Patel had assigned FBI employees to provide security and transportation for his girlfriend, country singer Alex Wilkins. The FBI was looking into whether Williamson could be charged with breaking federal stalking laws, according to a Times report by Michael S. Schmidt. Here is part of what Williamson wrote in February:
To an extent not previously reported, Ms. Wilkins is escorted in her travels by Special Weapons and Tactics team members drawn from F.B.I. field offices around the country. SWAT teams are chiefly trained to arrest violent criminals, free hostages and thwart terrorists. But Mr. Patel’s demand that rotating SWAT teams provide his girlfriend with security for singing appearances, personal engagements and errands is unprecedented in the F.B.I., former agents said.
And though this isn’t related to freedom of the press, it’s worth taking note that the FBI this week also raided an office and the cannabis business of Virginia state Sen. Louise Lucas, a Democrat who has been involved in efforts to draw new congressional districts, according to CNN reporters Holmes Lybrand and Sunlen Serfaty. In a statement, Lucas said:
Today’s actions by Federal agents are about far more than one state senator; they are about power and who is allowed to use it on behalf of the people. What we saw fits a clear pattern from this administration: when challenged, they try to intimidate and silence the voices who stand up to them.
Keep in mind that both major parties are engaged in a state-by-state redistricting battle kicked off by Texas, which, acting at Trump’s behest, redrew its map to favor Republicans in the upcoming midterm congressional elections. That battle surged into overdrive following the Supreme Court’s decision last week to overturn much of what was left of the Voting Rights Act of 1965.
It seems notable that the three journalists who’ve been targeted by the FBI as well as Sen. Lucas are all women. That may or may not be a coincidence, but it’s certainly on brand.
In the midst of this authoritarian uprising, independent journalism that holds power to account is more important than ever. Trump has enabled his designated thug at the FBI to weaponize the agency in order to threaten news organizations. Some have caved. Others are standing firm.
Freedom of the press remains the most power tool we have in holding power to account — which is why Trump’s designated thug at the FBI is so intent on undermining it. He can’t be allowed to get away with it.
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The go old old days weren’t all that good, and contributed to how we got into this mess in the first place. #comey #McGonigal
RESTRAINING THE MEDIA AT THE CIA:
Stephen Kurkjian, Globe Staff and Jeff McConnell, Special to the Globe, Boston Globe August 22, 1989
WASHINGTON – A former public information officer for William H. Webster, the head of the CIA, told a Harvard University audience last month that improved relations between the press and the CIA had helped him to persuade three major newspapers or their reporters to kill, alter or delay articles concerning CIA operations.
Although the news organizations challenge some details, the speech by the former official, William M. Baker, outlines the relations between the press and the CIA under Webster. The picture contrasts sharply with the relationship under Webster’s predecessor, the late William J. Casey.
Unlike Casey, Webster has not threatened news organizations publicly with prosecutions of them and their reporters if they publish articles about secret operations. And the concern among journalists that CIA officials lie to them has also diminished.
“In general, the willingness of the CIA to open its doors to reporters has improved greatly. The difference between Webster and Casey is enormous,” said John Walcott, a veteran national security reporter who is now with US News & World Report.
However, the situations described by Baker have raised speculation that similar stories might have been printed during Casey’s tenure. They also have shed light on the murky ground rules that apply in dealings between journalists and CIA officials when news reporting intersects with intelligence gathering.
In an interview Friday, Baker, who recently was promoted to assistant director of the criminal investigative division at the *FBI,* acknowledged that his success with reporters while at the CIA had more to do with the way he treated them than with the information he provided them.