Donald Trump is wreaking so much havoc and engaging in so much corruption that it’s hard to stay focused. But I urge all of us to keep our eye on this: He is killing civilians from Venezuela and Colombia in the Caribbean and, now, in the Pacific. The number is up to 43 victims.
Charlie Savage, who is one of The New York Times’ most perceptive reporters, has written a news analysis that places Trump’s actions in perspective. With Trump’s apologists perpetually engaging in whatabout-whatabout-whatabout, Savage notes that Presidents Barack Obama and George W. Bush went out of their way to come up with legal justifications for drone strikes against Al Qaeda (in Obama’s case) and for torturing terrorism suspects (in Bush’s).
You may not like what Obama and Bush did (I certainly don’t), but the point is that they understood the rule of law had to be asserted, even if they were paying it little more than lip service. By contrast, Trump is just killing people who may or may not be drug smugglers and who have the right to be arrested and tried, not “blown apart, burned alive or drowned,” as Savage puts it. He writes:
Every modern president has occasionally taken some aggressive policy step based on a stretched or disputed legal interpretation. But in the past, they and their aides made a point to develop substantive legal theories and to meet public and congressional expectations to explain why they thought their actions were lawful, even if not everyone agreed.
Savage adds: “In peacetime, targeting civilians — even suspected criminals — who pose no threat of imminent violence is considered murder. In an armed conflict, it is a war crime.”
Trump might ponder that one of his favorite former dictators, Rodrigo Duterte of the Philippines, is on trial before the International Court of Justice in The Hague for accusations that he was involved in dozens of killings in an attempt to crack down on illegal drugs.
You don’t have to draw a convoluted analogy. Trump is doing exactly the same thing that Duterte is accused of doing, and he’s reveling in it publicly. It is the worst thing he’s done as president, and that’s saying a lot.
George W. Bush in 2001. Public domain photo via the U.S. National Archives.
FCC chair Brendan Carr’s thuggish threat to crack down on media companies following late-night comedy host Jimmy Kimmel’s monologue about Donald Trump and Charlie Kirk differed from past instances only in that he said it out loud.
“We can do this the easy way or the hard way,” Carr said in an appearance on a right-wing podcaster’s show. And Disney, Nexstar and Sinclair, all of which have significant regulatory issues before the FCC, wasted no time in making sure that Kimmel was banished from ABC’s airwaves.
Trump himself put it even more bluntly, saying that broadcasters who are “against me” should lose their licenses, reported Zoë Richards of NBC News.
The first comparison that comes to mind, naturally, is Richard Nixon’s threat in 1973 to take away the licenses of two Florida television stations owned by The Washington Post amid the paper’s dogged reporting on the Watergate scandal. “The difference here is that Nixon talked about the scheme only privately,” the Post’s Aaron Blake wrote about the scheme many years later.
The late Ayatollah Ruhollah Khomeini, left, and Iran’s current supreme leader, Ayatollah Ali Khamenei. Photo of mural in the city of Qom (cc) 2013 by David Stanley.
I think the most rational response to President Trump’s bombing of Iran’s nuclear facilities is to hang back a bit — that is, to acknowledge that he’s the wrong leader to do this, that he was more likely acting on ego and personal pique than out of any strategic vision, but that it’s too soon to tell whether this will be a disaster or might actually accomplish some good.
One starting point is that Iran shouldn’t be allowed to possess nuclear weapons. Another starting point is to understand that what led to this really is all Trump’s fault. President Barack Obama painstakingly negotiated an agreement with Iran that significantly slowed Iran’s race to get a nuclear bomb, and Trump undid that in his first term for no discernible reason other than to disrespect Obama.
Benjamin Harrison. Photo (cc) 1998 by Monroedb1. Painting by T.C. Steele.
I recently sketched out some ideas for how the Constitution could be rewritten in order to get ourselves out of a dilemma that’s become a crisis — rule by a shrinking minority of voters, grounded in the reality that our smallest states have disproportionate power in the Electoral College and the Senate.
The most immediate result is that we now have a Supreme Court with three members who were chosen by a president who lost the popular vote and confirmed by Republican senators who represented far fewer Americans than the Democrats who voted against them. If that’s not a crisis of legitimacy, I don’t know what is.
After I wrote that post, the feedback I got on Twitter was partly favorable, partly unfavorable. I think the most substantive criticism is that I’m being hypocritical — that I wouldn’t care if the situation were reversed. I’ll plead guilty to one small part of that argument: I’m thinking that the time may have come to trim the Supreme Court’s immense powers, and that’s something that didn’t bother me when it was issuing landmark decisions on reproductive rights and same-sex marriage. (Then again, more rights shouldn’t be controversial since no one is being forced to avail themselves of those rights.)
But for the larger point I was trying to make? No, no hypocrisy. And that’s because the situation we find ourselves in is unprecedented, at least not since the Gilded Age. I recall sitting in the green room a few weeks before Election Day in 2000, waiting to go on “Beat the Press,” when one of the other panelists, Tom Fiedler, started talking about the possibility that the popular-vote winner might lose in the Electoral College. Impossible, I replied. These things have a way of working themselves out. After all, it had been 112 years since Benjamin Harrison, a Republican, had been installed as president despite losing the popular vote to Democrat Grover Cleveland. It wasn’t going to happen again.
Well, we all know how the 2000 election unfolded. George W. Bush became president thanks to the Electoral College, even though Al Gore won the popular vote. But that seemed like an outlier, and we were all far more riveted by the shenanigans in Florida than we were by the undemocratic nature of Bush’s victory. The belief that Bush stole Florida overshadowed the Electoral College issue.
What drove the Electoral College to the forefront, of course, was the 2016 election, which Hillary Clinton won by nearly 3 million votes. Thanks to the way the vote broke down geographically, Donald Trump won the Electoral College. In 2020, Joe Biden won by 7 million votes — a landslide by modern standards — yet still came uncomfortably close to losing in the Electoral College. It’s not at all inconceivable that the next Republican to win the Electoral College will also lose the popular vote by 8 million to 10 million people.
The Senate is, if anything, even less democratic. Tiny Wyoming (581,000 residents) gets two senators, who are virtually guaranteed of being Republican. California’s 39 million residents are also represented by just two senators, both Democrats. Yet at least in the post-New Deal era, the situation in the Senate was muddled enough that such geographic inequities didn’t really come into play. The Senate was Democratic for virtually all of that time, but the racist Southern Democrats really made the Senate a three-party body. Northern Democrats often worked with liberal and moderate Republicans (yes, there really were some). Coalition-building was possible. The filibuster was rarely used.
In today’s New York Times, Jamelle Bouie, whose writings on the Constitution and the state of democracy are indispensable, has this to say:
As for the constitutional crisis, it is arguably already here. Both the insurrection and the partisan lawmaking of the Supreme Court have thrown those counter-majoritarian features of the American system into sharp relief. They’ve raised hard questions about the strength and legitimacy of institutions that allow minority rule — and allow it to endure. It is a crisis when the fundamental rights of hundreds of millions of Americans are functionally overturned by an unelected tribunal whose pivotal members owe their seats to a president who won office through the mechanism of the Electoral College, having lost the majority of voters in both of his election campaigns.
Our current system favors geography over people and the interests of the minority over those of the majority. This has nothing to do with minority rights. A properly functioning liberal democracy is ruled by the majority with certain rights guaranteed so that government doesn’t deteriorate into a tyranny of the majority. Like, you know, not being forced to quarter troops in your home in peacetime. Or the right to a speedy and public trial. Or the right to exercise control over your own body, or marry the partner of your choosing.
I truly believe that when something can’t go on forever, then it won’t. At some point, the majority is going to rise up and demand change. Imagine what would happen if the next Republican presidential candidate loses the popular vote by 10 million yet wins the Electoral College with the help of dirty tricks in a few Republican states — dirty tricks that are being enshrined into law even as we speak. You can say that Democratic leaders won’t do anything, or won’t do enough. But you know what? It’s going to be taken out of their hands.
I wish you all a great Independence Day — and I look forward to a day when we can all reclaim our independence.
The death of Fred Hiatt ends a period of remarkable stability at the top of The Washington Post’s masthead. Hiatt, the editorial-page editor, had served in that position since 1999. Marty Baron, who was hired as executive editor in 2012, retired earlier this year. Hiatt and Baron predated Jeff Bezos’ acquisition of the Post in 2013, and their continuation in those roles was a signal that Amazon’s founder was determined not to interfere with either the newsroom or the opinion operation.
Baron was replaced by Sally Buzbee, previously the top editor at The Associated Press. It will be interesting to see who replaces Hiatt — though I suspect it could be a while given that his sudden death at 66 was unanticipated. When Buzbee was interviewed recently by Kara Swisher on her New York Times podcast, she gave the impression that publisher Fred Ryan was more involved in her hiring than Bezos was. We’ll see if Bezos follows the same pattern in hiring a new opinion editor. Not that he has to — the ethical standard good news organizations follow is that the owner should stay out of the newsroom but is free to meddle with the editorial pages.
I didn’t realize that Hiatt had Boston-area roots until I read the tributes this morning. He grew up in Brookline and graduated from Harvard, where his father was dean of the School of Public Health.
Hiatt’s retention was noteworthy, as new owners often want to exert their influence on the opinion pages. But even though Bezos’ politics were thought to be generally libertarian, the Post’s editorial stance — which could be described as moderately liberal with a taste for foreign intervention — did not change under Bezos’ ownership.
Looking back over the course of Hiatt’s career, I’d say that observation has held up. The Post is, indeed, moderately liberal. But his unsigned editorials called for war following the terrorist attacks of Sept. 11, 2001, and — more controversially — against Iraq, which then-President George W. Bush wrongly claimed had weapons of mass destruction. The Post, of course, was hardly the only newspaper to endorse what proved to be a horrendous foreign-policy blunder. But it’s the job of a great newspaper to take unpopular stands when warranted. In fact, the Times came out against going to war in Iraq, if rather grudgingly.
The Post’s opinion section diverged from the Times’ during the Donald Trump era as well. Though Hiatt was staunchly anti-Trump and published many anti-Trump columnists — including conservatives like Max Boot, Michael Gerson and George Will — he also employed pro-Trump pundits like Marc Thiessen (“Three cheers for ‘Let’s Go Brandon'”) and Gary Abernathy (“A Trump candidacy in 2024 would threaten his own legacy”).
I’m not sure what Hiatt thought such drivel added to his section. Maybe he just wanted his readers to see what the pro-Trump argument was without having to seek it out on Fox News. In any case, the Times took a different approach, restricting its in-house conservatives to Never Trumpers like Ross Douthat and Bret Stephens. (I’d mention David Brooks, too, except that he really isn’t much a conservative these days.)
Hiatt was a strong supporter of human rights around the world and spoke out forthrightly against the Saudi regime following the murder of one of his columnists, Jamal Khashoggi. By all accounts, he was also a very nice guy, which counts for a lot. A Post editorial put it this way: “Mr. Hiatt made it possible for The Post’s opinion writers and the content they produce to encompass a wide range of views on virtually every subject of public debate, without the rancor, personal enmity and bad faith that have become so prevalent elsewhere in Washington and the nation. Our respect for and loyalty to Mr. Hiatt, and his for us, held this staff together.”
Hiatt served long enough in his position to watch the Post shrink under Graham family ownership from a viable competitor with the Times to a regional paper forced to cut its staff year after year; and then to preside over its rebirth and growth under Bezos. He was an honorable servant of the Washington establishment, which I mean in both a positive and a negative sense. Given the fractures that are now tearing the country apart, we may not see the likes of him again.
Like all of us who are old enough, I have vivid memories of Sept. 11, 2001, just as our older brothers and sisters do about the assassination of John F. Kennedy and as our parents and grandparents did about the attack on Pearl Harbor. As others have said over and over again, it was a cool, clear morning, a preview of fall. I was working at The Boston Phoenix, where I covered media and politics. I stepped outside to get coffee and ran into an old acquaintance.
“Isn’t it terrible what happened at the World Trade Center?” she asked.
I didn’t know what she was talking about. I hurried inside. American Airlines Flight 11, which originated at Logan Airport in Boston, had crashed into the North Tower. There was talk of terrorism.
The Phoenix did not have what you would call a well-equipped newsroom. We had a TV that got a handful of channels but no cable. It was obvious what I would be writing about, so I raced to my car and hurried home to the North Shore. I turned on the radio and listened to coverage of the second tower’s collapse just as I was rounding the bend to Route 1. And then I sat down in front of the television set, watching for hour after hour and wondering how I would make sense of it all. Finally, sometime well after midnight, I started to write.
The piece I came up with was headlined “The End of Decadence.” In it, I expressed my hope that the media would finally return to a sense of purpose and seriousness after a decade of wallowing in celebrity culture, the O.J. Simpson trial and the theater-of-the-absurd impeachment of a president over his tawdry sex life.
In fact, the media did change after 9/11, but not for the better. The downward slide didn’t happen immediately. At first, the press diligently covered the aftermath of the attacks. The New York Times ran a wonderful series on the victims called “Portraits of Grief.” Journalists sought to make sense of how security measures aimed at preventing such attacks had so thoroughly broken down. The hunt for Osama bin Laden was covered with great enterprise and courage.
But it wasn’t long before President George W. Bush, a unifying figure in the days immediately after the attacks, began leading the nation in a divisive direction. His uplifting rhetoric about Muslims was offset by the government’s treatment of Muslims as a security risk. He went to war not just in Afghanistan but in Iraq, claiming — falsely, as it turned out — that Saddam Hussein’s regime possessed weapons of mass destruction.
And the media went along for the ride. Few questioned the Bush administration’s claims about Iraq, and few questioned why our incursion into Afghanistan had turned into a full-fledged war to transform a place we didn’t understand into a Western-style democracy. The Times in particular disgraced itself with its credulous, gung-ho coverage, but so did most other news outlets — especially cable news. My late friend Danny Schechter, the “News Dissector,” called it “militainment,” a construction he borrowed from James Poniewozik, then with Time magazine, now with the Times.
Over the next few years, the wars and the Bush White House both lost support, and the media began to fracture into what we see today — a reflection of the polarization that has made it nearly impossible for Democrats and Republicans even to speak to each other. On one side we have the mainstream media, hardly perfect but dedicated to reporting the truth, trusted by about 60% of the country. On the other side we have right-wing propaganda that has convinced 40% of the country that Donald Trump won the 2020 election, vaccines are dangerous and critical race theory is the most serious threat facing us.
Last month, the 20-year misadventure set off by 9/11 was finally brought to an end as the United States pulled its last remaining troops out of Afghanistan. It was a chaotic, ugly finish, and President Joe Biden has received quite a bit of criticism for it. But it does bring a close to the story that began on that clear September day in 2001.
The conclusion of the war in Afghanistan ends an era in journalism as well. Think back to where we were. Fox News was barely a blip on the radar. CNN consisted of straight news rather than opinionated talk shows. There was no Facebook, no Twitter, no broadband. The internet-driven collapse of newspapers was still in the future. In other words, it was a time of consensus in the media and in the culture, at least compared with what was to come.
Over the weekend, Bush was praised for his forthright denunciation of the Trump-inspired domestic terrorists of 2021. “There is little cultural overlap between violent extremists abroad and violent extremists at home,” he said. “But in their disdain for pluralism, in their disregard for human life, in their determination to defile national symbols, they are children of the same foul spirit. And it is our continuing duty to confront them.”
That’s all well and good. But it was Bush, Dick Cheney and Donald Rumsfeld who started us down the road to Jan. 6 with their catastrophic wars, their trampling of civil liberties in this country and their use of torture abroad. And it was a combination of cowardice and gullibility on the part of too many in the media that helped bring us to the crisis of democracy we are dealing with today.
In analyzing the U.S. Supreme Court’s 5-4 vote not to overturn Texas’ drastic new abortion restrictions, a number of commentators have focused on the role played by the three justices nominated by Donald Trump — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
All three, needless to say, are wildly controversial. Gorsuch was chosen after then-Senate majority leader Mitch McConnell refused even to take up Barack Obama’s nomination of Merrick Garland, who’s now attorney general. Kavanaugh was confirmed despite serious and credible allegations of sexual assault. Barrett was rushed through before the 2020 election following the death of Ruth Bader Ginsburg.
But there is a more systemic problem, and that’s the failure of democracy that made last’s week’s decision possible. Trump, as we all know, lost the popular vote to Hillary Clinton in 2016 by about 3 million votes. He won only because the Electoral College, a relic of slavery, provides small rural states with disproportionate power. Yet he got to appoint one-third of the current court.
Moreover, all three of Trump’s justices were confirmed by a Senate controlled by the Republicans even though they represented fewer people than the Democrats. Gorsuch and Kavanaugh were confirmed during the first two years of Trump’s term, when the Democratic senators represented 56% of the population nationwide compared to the Republican share of 44%. That margin had narrowed slightly by the time Barrett was confirmed, but 53% of the population was still represented by Democratic senators compared to 47% by Republicans. (See my analysis.)
The other two justices who voted to uphold the Texas law were Clarence Thomas, appointed by George H.W. Bush, who was a majority president, and Samuel Alito, appointed by George W. Bush during his second term, which he won by a majority after losing the popular vote the first time around. But that’s just two votes. If Obama and Clinton had named three justices instead of Trump, it’s easy to imagine that the Texas law would have been suspended by a 7-2 vote. It’s just as easy to imagine that the Texas legislature wouldn’t have passed such a perverse and draconian law in the first place.
This is not democracy. Nor is it republicanism, since a properly designed republic is supposed to represent a majority of the electorate by proxy. It’s fair to ask how long this can go on before the majority stands up and demands an end to government by the minority.
Attorney General Merrick Garland. Photo (cc) 2016 by Senate Democrats.
Give President Joe Biden credit for having a keen understanding of what it takes to hold together his Democratic-liberal-progressive coalition.
When he said in May that it was “simply, simply wrong” for the government to spy on journalists, I was skeptical that he would follow up his sentiment with concrete action. After all, he was vice president under Barack Obama, whose harassment of reporters in his campaign against leaks was legendary. Other presidents also thought nothing about going after reporters, including Donald Trump, George W. Bush and, of course, Richard Nixon.
But press secretary Jen Psaki followed up by assuring reporters that Biden meant what he said. And, on Monday, it came to fruition with Attorney General Merrick Garland’s announcement that the administration would stop attempting to seize journalists’ records in nearly all circumstances. In a memo quoted by The New York Times, Garland wrote:
The Department of Justice will no longer use compulsory legal process for the purpose of obtaining information from or records of members of the news media acting within the scope of news-gathering activities.
Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, issued a statement of approval, saying:
The attorney general has taken a necessary and momentous step to protect press freedom at a critical time. This historic new policy will ensure that journalists can do their job of informing the public without fear of federal government intrusion into their relationships with confidential sources.
Technically, Garland was acting on his own. The attorney general is supposed to be independent of the president. But Garland could hardly continue with the anti-press policies of Biden’s predecessors after Biden himself had spoken out so strongly in favor of reform.
Garland’s actions come in response to some truly shocking actions undertaken by the Trump administration, some of which spilled over into the first few months of the Biden presidency. Acting on what appeared to be political motivations, the Trump Justice Department sought phone and email records from journalists at The Washington Post, The New York Times and CNN. Judging from the timeline, the Trumpsters seemed to be looking into those news organizations’ reporting on the 2016 Trump campaign’s ties to Russian interests.
There are some exceptions to Garland’s order in the case of life-or-death situations, or if a reporter is believed to be actively helping a source obtain classified information. But these exceptions strike me as reasonable rather than being easily exploited loopholes.
Garland’s memo also says that the Justice Department will support efforts to pass legislation making the guidelines permanent so that they don’t expire as soon as Biden leaves office. That’s really the key, since future presidents and attorneys general would otherwise not be bound by Biden and Garland’s good intentions.
Photo (cc) 2014 by the National Museum of American History
This essay was first published in the Media Nation member newsletter. To become a member for $5 a month, please click here.
Like many of us, I worry about the state of our democracy. I write about it from time to time, but what concerns me especially is that it’s almost impossible to see any way out of our dilemma. That’s because we need systemic reform in order to move toward democracy. Not only is it in the interest of Republicans to oppose that reform, but there’s also no way of overcoming their opposition.
Obviously a lot of attention has been focused on Democratic Sen. Joe Manchin’s opposition to getting rid of the filibuster, which means that President Joe Biden won’t be able to pass any of his non-budget priorities through a simple majority. But we all know the problem goes deeper than that, because the Constitution is heavily tilted toward the small-population states, which are overwhelmingly Republican.
At the presidential level, we need to get rid of the Electoral College, a vestige of slavery that resulted in the elections of George W. Bush in 2000 and Donald Trump in 2016 even though they lost the popular vote. Yes, the Electoral College has always been with us. But before Bush, the last time a candidate was elected president despite losing the popular vote was in 1888. Because of shifting demographics, such outcomes have become increasingly likely.
Nor is the problem solely at the presidential level. The 50 Republican senators represent just 43.5% of the electorate, according to calculations by the Daily Kos, whereas the 50 Democratic senators represent 56.5%. That’s an enormous gap, yet between the filibuster’s requirement of 60 votes to move forward on anything and the small-state advantage, Chuck Schumer might as well hand his gavel over to Mitch McConnell.
The House is at least theoretically democratic since districts are drawn on the basis of population. But partisan gerrymandering has resulted in Republicans having more seats to which they should be entitled. That will certainly prove to be a factor in the midterm elections, when the Republicans will in all likelihood regain their majority.
And I haven’t even mentioned Republican efforts across the country to pass voter-suppression laws that would disproportionately affect people of color.
This state of affairs would be bad enough if Republicans were committed to our democratic system. But we can see that they’re not, and their willingness to repeat the Big Lie that Trump won re-election last fall has become a loyalty test within the party.
We can all think of ways to solve these problems, but even to write about them seems like an exercise in futility. The Republicans would block any changes that would diminish their power. And we will continue to move deeper into minority rule.
The revelation last week that the Trump Justice Department had spied on three Washington Post reporters’ phone records barely caused a stir. But as much as I’d like to think that such behavior would shock the conscience, I can understand why the story failed to resonate. It was, after all, the sort of thing that all administrations do. To invoke a pandemic cliché, it was a sign that nature is healing.
Not to sound cynical and world-weary. We should be outraged. We should be shouting from the rooftops. When the government uses its awesome legal powers to stymie journalists who are trying to do their jobs, we lose our ability to hold the powerful to account. The incident would stand as yet another example of former President Donald Trump’s authoritarian tendencies — except that, at least in this instance, his actions were right in line with those of his predecessors.
As Jon Allsop of the Columbia Journalism Review wrote, “it’s not ‘bothsidesism’ to call out loathsome things that both sides are actually doing.”
So what happened? Devlin Barrett of the Post reported last Friday night that the Justice Department informed current Post journalists Ellen Nakashima and Greg Miller and former Post journalist Adam Entous that their phone records had been obtained, and their email logs had been unsuccessfully sought, for mid-April through July of 2017. The phone records showed whom the reporters were in contact with but did not reveal the contents of the calls.
There are a few details that make this particular exercise of executive power especially disturbing. The three reporters were delving into the 2016 Trump campaign’s ties to Russia during the period in question. The records were sought in 2020, when the attorney general was Trump enabler William Barr. Thus the incident could be seen as part of Trump’s long-standing obsession with covering up his ties to Russian interests.
In other respects, though, it was business as usual.
I wrote a commentary in 2012 for HuffPost headlined “Obama’s War on Journalism.” It’s a matter of public record that Barack Obama, during his eight-year presidency, showed a shocking lack of regard for the role of the press in a free society. Obama and his attorney general, Eric Holder, were obsessed with identifying government officials who had leaked sensitive or embarrassing information to the press. One reporter, James Risen of The New York Times, was threatened with jail for several years.
The Obama years were extreme but not exceptional. Previously, then-Times reporter Judith Miller actually did a stint behind bars for refusing to cooperate with an independent counsel’s investigation into possible wrongdoing by officials in George W. Bush’s administration: Someone had publicly identified a CIA operative in apparent retaliation for an op-ed (oops, guest essay) her husband had written for the Times that accused officials of ignoring evidence contradicting their claim that Iraq was trying to build nuclear weapons.
At least in that case, Bush had nothing to do with the investigation that landed Miller in jail. But Bush hardly had clean hands. After the Times reported that Bush’s National Security Agency was illegally spying on Americans, Bush denounced the paper’s work as “a shameful act,” and people around him urged that the Times be prosecuted under the World War I-era Espionage Act. The Times won a Pulitzer Prize for its revelations.
Of course, Richard Nixon’s attempts to retaliate against the press were legendary, ranging from including hostile reporters on his “enemies list” to threatening to strip The Washington Post of its television stations.
A central dilemma in all of these cases is that though the First Amendment offers robust protections for anything that the media might publish or broadcast, it is relatively silent on protections for reporting. In Branzburg v. Hayes, the 1972 decision that reporters do not have a constitutional right to protect their anonymous sources, Justice Byron White wrote that “news gathering is not without its First Amendment protections.” As a general rule, though, reporters have no more protections in going about their jobs than do ordinary members of the public.
Will the situation improve under President Biden? Not likely. As the CJR’s Allsop pointed out, the Biden Justice Department didn’t just inform the three Post journalists that they had been spied upon — it went out of its way to endorse the practice. Marc Raimondi, a spokesman for the current Justice Department, was quoted in the Post’s account as saying that the department “follows the established procedures within its media guidelines policy when seeking legal process to obtain telephone toll records and non-content email records from media members as part of a criminal investigation into unauthorized disclosure of classified information.”
Raimondi added — shades of Obama and Holder — that “the targets of these investigations are not the news media recipients but rather those with access to the national defense information who provided it to the media and thus failed to protect it as lawfully required.”
With public approval for the media near record lows, and with the courts unlikely to carve out any new protections for journalism, it’s not realistic to think that things are going to change for the better any time soon.
At the very least, though, the president could issue guidance to his Justice Department, backed up with a strong public statement, that the government will not spy on, subpoena or prosecute journalists except under the most dire life-and-death circumstances.
Biden appears to be intent on breaking with his predecessors in many ways, especially regarding the size and scope of government. Respecting the role of the press would be one way that he could ensure greater scrutiny of that government on behalf of all of us.
