In 2024, Trump killed a federal shield law. Now he’s exploiting that to harass The New York Times.

In the waning days of the last Congress in December 2024, a Republican senator killed efforts to pass a federal shield law that would have protected journalists from being forced to identify their anonymous sources or turn over confidential documents.

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The so-called PRESS Act, which had passed the House unanimously, died when Sen. Tom Cotton of Arkansas — acting at the behest of Donald Trump, who’d just been re-elected — objected to an attempt to pass it by unanimous consent. Cotton said that passage would turn senators “into the active accomplice of deep-state leakers, traitors and criminals, along with the America-hating and fame-hungry journalists who help them out.”

Now we see the consequences of Cotton’s recklessness. Michael M. Grynbaum reports in The New York Times that three of the five Times journalists who exposed security problems on the new Air Force One — a corrupt gift to Trump from the Qatari government — received subpoenas ordering them to reveal their sources.

The Times is fighting the subpoenas, and I hope the paper prevails. But I want to call your attention to what the Times’ lawyer, David McCraw, said about them in a written statement:

They violate the constitutional rights of The Times and its journalists. We are going to court to defend our journalists’ rights to report freely on the administration and to provide the public with stories that matter.

I’d like to read the motion that the Times filed to see what McCraw means by “constitutional rights,” but it’s been sealed by court order. Obviously McCraw knows his First Amendment law, and it would be interesting to see how he crafted his argument. As he well knows, the Supreme Court specifically rejected constitutional protection for anonymous sources in its muddled, 5-4 Branzburg v. Hayes decision of 1972.

Here’s what McCraw may mean: One member of the Branzburg majority, Justice Lewis Powell, issued a separate opinion suggesting that demands that journalists reveal sources should be considered on a case-by-case basis. Justice Potter Stewart, who was on the losing end, suggested that judges apply a three-part balancing test before ordering journalists to testify: Is the information relevant? Is it essential? Are there any alternative, non-journalistic sources to get the same information?

Times lawyer James Goodale, despite losing the Branzburg case, developed Powell and Stewart’s writings into a theory that such a balancing test should be applied as a matter of course. But enthusiasm for that idea has waned over the decades, and we are left with the reality that journalists are entirely unprotected in the federal system. (Forty-nine states have some type of journalist’s privilege, either in the form of a shield law or state court rulings. Wyoming is the sole exception.)

Joe Biden and his attorney general, Merrick Garland, put a stop to subpoenas of journalists, but Trump has resumed them. In some cases, his Justice Department doesn’t even bother with the nicety of a subpoena, as with Hannah Natanson, the Washington Post reporter whose apartment was raided by federal agents earlier this year. So far, at least, the judge in that case has not allowed the government to look at what it grabbed.

What Trump and his interim attorney general, Todd Blanche, have done is unconscionable. Usually a demand that journalists turn over their sources comes at the end of an investigation. Trump and Blanche are front-loading the process by starting with subpoenas and turning the press into an investigative arm of the government. (Maybe that’s what McCraw means when he calls the subpoenas unconstitutional.)

It’s perhaps notable that New York Times executive editor Joe Kahn, in a video statement, doesn’t repeat the claim that the subpoenas violate the First Amendment, calling them instead “a naked attempt to intimidate The New York Times.” They are surely that. Fortunately, the Times has stood by its independence throughout Trump’s second term, even as news outlets like CBS and ABC have bent the knee.

The PRESS Act would have provided strong shield protection to journalists. It was a lost opportunity, and it’s one that’s not likely to present itself again anytime soon.