Trump is coming for the press
An independent and free press is essential for a functioning democracy. That’s precisely why it’s in the administration’s crosshairs.
Journalists, contrary to the president’s assertion, are not the enemies here. But they are easy targets, and when the heat is turned up on them, their sources will inevitably dry up. That’s the point.
By Kimberly Atkins Stohr, Globe Staff

There are two things as certain as death and taxes. The first is that an independent and free press is essential for a functioning democracy. That the press is the only profession that enjoys express protection in the Bill of Rights is a testament to that fact.

The other certainty is that the work of a free press will face blowback, pushback, and in some cases out-and-out obstruction by the governments that reporters are tasked to hold accountable — even in a democracy.

Over the weekend, the Department of Justice threw down a new gauntlet in the Trump administration’s war with the press. It’s an escalation that should concern not only every journalist in the nation, but also every American. And it could have all been prevented if not for the actions of one lawmaker.

First, the gauntlet: Attorney General Pam Bondi issued a new Department of Justice policy that makes it easier for prosecutors to use subpoenas and other means to compel journalists to disclose information about their sources as part of federal leak investigations.

While local and state laws as well as court rulings in various jurisdictions have placed some limits on officials’ ability to obtain journalists’ sources and data, no federal law does. That’s despite the fact that even before Trump declared the mainstream media to be “the opposition party’’ and the “enemy of the people,’’ presidents of both parties have played fast and loose with the spirit, if not the letter, of First Amendment press protections in their zeal to identify and punish whistle-blowers who leak information to the press, even when done in the public interest.

President Nixon, claiming that The New York Times placed “itself above the law,’’ unsuccessfully tried to use the courts to halt the publication of the Pentagon Papers, which disclosed how the government concealed the breadth of the US role in the Vietnam War. The Obama administration prosecuted more people under the Espionage Act for publicly disclosing sensitive government data than all previous administrations combined — and those probes snared journalists’ data in their investigative web, including a massive tranche of Associated Press reporters’ phone records. The first Trump administration also seized phone records of journalists from The Times, The Washington Post, and CNN.

In an effort to swing the pendulum back toward press freedom, the Biden administration, under then-Attorney General Merrick Garland, issued a Justice Department directive that drastically limited the ability of federal prosecutors to compel journalists to disclose information about their reporting and sources, requiring — among other things — Garland himself to sign off on such efforts.

Bondi’s new policy rescinded that guidance, giving prosecutors much more leeway in not only seeking journalists’ work product and the identities of their sources, but putting journalists in far more peril of facing prosecution themselves.

Some danger comes from the sheer breadth of Bondi’s directive. While past guidance focused on investigating crimes, such as violations of the Espionage Act, Bondi’s memo states in part: “This Justice Department will not tolerate unauthorized disclosures that undermine President Trump’s policies, victimize government agencies, and cause harm to the American people.’’

What does that even mean? That will be in the eye of the beholder — specifically the Trump-appointed federal prosecutors probing government leaks.

Also concerning is the fact that Bondi’s memo quotes a Trump executive order targeting former Trump aides Christopher Krebs and Miles Taylor, who went on to criticize the president. The order, which stripped Krebs and Taylor of their security clearances, declares the disclosure of information “undermining our foreign policy, national security, and Government effectiveness’’ to be “treasonous’’ — a characterization that is not supported by federal law. Still, that is an express lodestar of Bondi’s new DOJ rule.

Kevin Goldberg, attorney and vice president of the Freedom Forum, a First Amendment advocacy organization, told me such policies can have the kind of chilling effect on the media that the First Amendment was meant to prevent.

“Journalists don’t want to use confidential sources,’’ Goldberg said. “They always make the calculation about whether they need to use them. And yes, sometimes the story is so important that journalists rely on a confidential source to serve the public good.’’

Such sources are, of course, not secret to the journalists. And most news organizations have strict guidelines for verifying information obtained in part from sources who wish to remain anonymous. Journalists, contrary to the president’s assertion, are not the enemies here. But they are easy targets, and when the heat is turned up on them, their sources will inevitably dry up. That’s the point.

It didn’t have to be this way. Last year, the House unanimously passed bipartisan legislation to protect journalists from being forced to disclose, and the government from seizing, information about the identity of sources. But the bill was blocked in the Senate on the objection of just one member: Republican Senator Tom Cotton of Arkansas.

I hope our democracy endures long enough for us to learn from these mistakes and give journalists the protection that they need and that the Framers envisioned. But history will always reflect the times we missed that chance.

Kimberly Atkins Stohr is a columnist for the Globe. She may be reached at kimberly.atkinsstohr@globe.com. Follow her @KimberlyEAtkins.