Those Subpoenas to Reporters May Not Be Quite What You Think

Welcome to Second Rough Draft, a newsletter about journalism in our time, how it (often its business) is evolving, and the challenges it faces.

The subpoenas to reporters for the Wall Street Journal, Washington Post and New York Times in recent weeks seeking to identify the sources of important national security stories have received a lot of attention. But I think what’s going on here is not quite what you’ve been told, either by the Trump Administration or even by aggrieved journalists. This week I want to try to explain why.

Let’s start with the facts, insofar as we know them. Two sets of stories seem to be involved: first, articles detailing the influence of the government of Israel in convincing Trump, over the objections of officials ranging from the Vice President to the Chairman of the Joint Chiefs of Staff to the Director of the CIA, to launch his misbegotten war of choice on Iran, and more recently, pieces reporting the apparent security deficiencies, even after hundreds of millions of dollars in retrofitting borne by American taxpayers, in the airplane given to Trump by the Emir of Qatar to serve as a new, fancier Air Force One. Both sets of stories were profoundly embarrassing to Trump; both seem to be true.

The stories revealed information that, we should acknowledge, is properly classified. Any president should be able to consult with other nations and to deliberate on the use of force in secret—although very few get to do so in practice, as all presidents understand. And the defensive measures incorporated into Air Force One—the old one made to specs by Boeing and the new one apparently rushed through a partial retrofitting after the Qatari gift—are the sorts of things the government is entitled to try to keep from our adversaries.

So I am not going to defend the legal position of the leakers here, and I don’t think you should either. That said, once officials decide to leak, for reasons of their own, it is emphatically not the job of the press to refuse the information they are offering. Voters are entitled to know that Netanyahu seems to have hornswoggled Trump into a disastrous war, and the fact that Trump was impatient to fly on a plane because he liked its larger size, greater gilding and fancy couches, even though short-cuts had been taken with his safety and that of the hundreds of others who might be aboard, is further important evidence of his seemingly boundless recklessness.

The stories revealing this were published only after the war had begun, and only after Trump was convinced not to use the plane on a flight from Ankara to Britain, but then insisted on using it to fly home. The airplane stories did not reveal any details of the security shortcomings, repeating only previously-published information on the capabilities of the older plane. Those capabilities are so not-secret that they were dramatically depicted in a Harrison Ford movie almost 30 years ago (see clip below).

While the FBI asked the New York Times not to publish the story about the Qatari plane, it did not say why. I have been privy to a number of such requests from the government to the press over the years, some of which were granted, others refused; in no such cases did the government refuse to provide a reason.

The earlier subpoenas to the Journal and the Post were withdrawn in the face of litigation, and my guess is that those now to the Times eventually will be as well. Why? Because the government doesn’t really want to find these leakers. They are likely highly placed, and quite possibly acting out of desperation brought on by Trump’s insulation from unpleasant facts. (See Maggie Haberman and Jonathan Swan’s excellent Regime Change for a devastating account of how pervasive this has become.) The Times filed papers yesterday to quash the latest subpoenas.

Seen in this light, all of these recent subpoenas are not the would-be aggressions that are often depicted by both sides, so much as they are reflections of weakness and internal division. For instance, leaders of the Secret Service, having convinced Trump not to fly in the Qatari plane near Iran, but not having overcome his insistence on taking it trans-Atlantic, may have sought through publicity to foreclose future international flights until retrofitting is complete. In the case of the decisions to go foolishly to war, some of the leading dissenters may have wanted to establish a record of their own sagacity, or to shift blame from Trump himself to the Israelis. In almost all leaks, if you want to know the source, ask who benefits.

On the other side of the equation, seeking to bring the weight of government down on smaller and less well-resourced news organizations can actually be intimidating, and raises much greater dangers. But in my observation and experience, trying this with newsrooms like the Journal, Post and Times only provokes and emboldens them, rallying their staff and many of their readers. Even Rupert Murdoch and Jeff Bezos have gone along with the resistance. This phenomenon is one of the most enduring lessons of the Pentagon Papers and Watergate under Nixon, and it amazes me how many people in White Houses in the decades since have failed to learn it.

Finally, let’s look at the law in these situations. Trump’s Department of Justice folded in the face of challenges from the Journal and the Post because they knew they were going to lose in court. That’s not because the law protects leakers of classified information—mostly it doesn’t—but because, once again, the Trump team’s impatience, sloppiness and transparent bad faith make them their own worst enemies in litigation.

In 1972, the Supreme Court denied that there was a constitutional privilege protecting reporters’ sources in criminal cases. Because the Court was closely divided and issued a confusing set of opinions, lower courts in the following 34 years had significantly eroded that ruling, to the benefit of reporters. But in 2006, in cases involving Judy Miller of the New York Times and two reporters from Time Magazine, all that came undone. Miller served 85 days in jail rather than reveal her source. The leak investigation ultimately deprived the George W. Bush administration of the vice president’s chief of staff and the deputy secretary of state. No administration appears to have launched a real leak investigation at that level in the decades since then.

If the government does launch a serious investigation of an important leak of legitimately classified information, and establishes that it requires a reporter’s limited testimony against a potential defendant leaker, they will quite likely prevail.

But that is not the Trump modus operandi.

Even in the 1972 case, the Supreme Court noted that a bad faith subpoena for a reporter’s sources could be met with a constitutional defense. Bush’s Justice Department in the Judy Miller case said it agreed. Now Trump and his lackeys at the FBI and US Attorney’s office in New York have managed to create an almost perfect record of what proceeding in bad faith means.

How can we know that, given that bad faith is a subjective test, placing us in the mind of the procurer of the subpoena? The first story on the security lapses in the Qatari airplane was published last Wednesday. The subpoenas were served on three Times reporters on Friday. (Subpoenas apparently prepared for two other Times reporters remain unserved.) Clearly, little or no investigation of the leakers intervened. Instead, the President had yet another temper tantrum and his sycophantic FBI director leapt into the fray. (We learn this from yet more leaks. The subpoenas are not deterring high-ranking leakers, presumably because they know the effort is unserious.)

It is quite possible that the very first actions of the Manhattan grand jury considering the Qatari plane leak were to authorize the subpoenas. All you need to know, by way of contrast, is that the subpoenas to the Time Magazine reporters two decades ago came four months after a special prosecutor convened a grand jury, while that to Miller came after six months.

I don’t want to be misunderstood here: Trump’s subpoenas are an abuse of power, and legally specious. They are a disgrace. If such an effort were being directed against more vulnerable targets, our concern should be much greater. If the government was run by more serious people in a more serious way, they would be threatening to our freedoms as citizens.

As it is, it may be that some sources, especially of lower rank, aware of other failings of government, are being deterred from telling the public things it needs to know, which is a loss for us all. But as things stand, these particular subpoenas just aren’t what they’re cracked up to be.

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