COMMENTARY: Under Trump, is jail next for journalists?

COMMENTARY | Jack Fruchtman

The press is under serious attack, but not only because President Donald Trump prefers to call it “the enemy of the people” and revoke credentials at will. Waiting in the wings may well be prison terms.

Between 1917 and 2009, only one person was convicted of violating the Espionage Act for leaking classified information to the press. Then the Obama administration came along and prosecuted eight government whistleblowers at a far higher rate than those undertaken by all previous presidential administrations. These included Thomas Drake, Chelsea (formerly Bradley) Manning, and (almost) Edward Snowden.

The Trump administration continues the trend. On Oct. 18, former FBI agent Terry J. Albury was sentenced to four years in federal prison for leaking classified information to the press after he became frustrated by the agency’s abuse of immigrants, including racism and xenophobic attitudes. He sent secret FBI files to the media, which published it.

The Espionage Act passed Congress in 1917 just after the United States entered World War I. Legally and constitutionally the act raised an ironic question: How could authorities enforce it in light of the First Amendment? A good deal depended on the “intentions” of the speaker or writer. The old English common-law principle regarding expression was based on “the rule of proximate causation”; that is, the relationship between spoken or written words and subsequent illegal actions.

The first key case before the Supreme Court involved Charles T. Schenck, secretary of the Socialist Party in America, who printed, distributed and mailed to draft-eligible men information that advocated opposition to U.S. involvement in the war. There was no leak to the press, but his conviction was upheld by the Supreme Court. Writing for the court, Justice Oliver Wendell Holmes ruled that a court must decide whether words that a defendant used were “used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”

During the Obama administration, Thomas Drake, a senior executive at the National Security Agency, discovered misspent funds in “Trailblazer,” a government program involving spying on American citizens. In 2010, after Drake determined that the project violated the Fourth Amendment protections against unreasonable searches and seizures, he informed the inspector general of the N.S.A. and the Department of Defense, and the government ended the program at a cost of $1 billion. Because Drake believed that Americans had a right to know about government wrongdoing, he recounted his findings to a Baltimore Sun reporter, Siobhan Gorman. A federal grand jury indicted Drake for violating the Espionage Act for leaking the information to the press. (He pleaded guilty to a misdemeanor computer violation and received no jail time.)

One of the most publicized cases occurred in 2011 when Army Pfc. Bradley Manning, now Chelsea Manning, released hundreds of thousands of national security documents and video recordings tapes to WikiLeaks. Like Drake, Manning was indicted for violating the Espionage Act. In 2013, after announcing that she was a woman, Manning was sentenced to 35 years in prison, the longest in a leak case, and dishonorably discharged from the Army. President Barack Obama commuted her sentence, after which Donald Trump as a presidential candidate called her an “ungrateful traitor.”

Meantime, a National Security Agency contractor, Edward J. Snowden, sent to the press hundreds of thousands of documents that showed the United States routinely collected information on its citizens. Snowden ultimately wound up in Russia, where he remains today under political asylum. Like Manning, he claimed that Americans had a right to know that the government spied on them. The State Department has asked the Russian government to extradite him to the United States to stand trial for violating the Espionage Act.

And now Donald Trump and his Department of Justice want to stop leaks of government wrongdoing to the press by intimidating potential whistleblowers like Albury and others. In August, a woman charged with leaking a government report on Russian hacking in 2017 was sentenced to more than five years in prison. And last month, the Justice Department charged a Treasury Department official with leaking information about former Trump campaign manager Paul Manafort’s secret wire transfers. Other indictments are presumably pending.

So far, no reporters have been targeted. But given the president’s attacks on “fake news,” which is news he does not like or want the public to know, and claims that the press is the “enemy of the people,” the next in line may well be reporters and editors.

Jack Fruchtman teaches constitutional law and politics at Towson University in Maryland. His column was published by the Baltimore Sun.