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The raid of a journalist’s home, along with the jailing of their alleged source, are shocking acts of authoritarianism. And they are in line with Trump’s willingness to use the national security state as a weapon against the press, which is a serious threat to our democracy. But those weapons were not invented by Trump nor did he pioneer their use against free press.
The raid of Hannah Natanson, is a shocking escalation, not a rupture. The United States has been backsliding to this point – at both the federal and local levels – for quite some time.
Following the publishing of the Pentagon Papers, the Nixon administration turned to the first world war era Espionage Act to prosecute whistleblower Daniel Ellsberg. Nixon’s illicit campaign against Ellsberg, modelled after techniques like break-ins then-routinely used by the FBI and CIA, tanked the prosecution. But the Espionage Act sat as a loaded gun against both journalists and their sources. It went largely unfired until the Obama administration.
The former constitutional law professor had promised the most transparent administration in history. Instead, his administration normalized the archaic Espionage Act as the go-to weapons for prosecuting journalists’ sources. Whistleblowers, such as Chelsea Manning, Edward Snowden, Thomas Drake, and John Kiriakou, who helped journalists inform the public about war crimes, torture and unconstitutional surveillance, were transformed into criminals.
Targeting journalists’ sources is an affront to press freedom. It also quickly leads to targeting journalists. The Obama administration attempted to compel national security reporter James Risen to name his source about a botched CIA covert action, threatening him with jail if he refused to name names.
While the Department of Justice backed off on incarcerating the prestigious journalist, they put his alleged source, Jeffrey Sterling, on trial. Although Sterling maintains his innocence, he was convicted in part based on metadata that showed he had called or emailed Risen. Surveilling journalists is key to building cases against their sources.
As bad as these prosecutions were, the government’s pursuit of WikiLeaks took the threat to press freedom to a whole new level. WikiLeaks source Manning was subjected to torturous conditions of confinement and a then unprecedented prison sentence. But the government was not satisfied with persecuting the source alone. From the beginning, there was an attempt to pursue publisher Julian Assange, as well.
Many speculated that the harsh treatment of Manning was an attempt to turn her into a witness against Assange. During Trump’s first term, the moribund case against the WikiLeaks founder was resurrected in the form of an unprecedented Espionage Act indictment. Some of those counts dealt with pure publishing; the vast majority alleged the journalist-source relationship constituted a criminal offense. Under the Biden administration, the Department of Justice extracted a plea deal from Assange.
According to the plea deal, Assange, by receiving and publishing newsworthy information from Manning about US war crimes, backroom dealings, and abuses of power, was guilty of conspiring with her to violate the Espionage Act.
Routinely prosecuting whistleblowers under the Espionage Act, surveilling journalists to enable the prosecution of their sources, and ultimately prosecuting a journalist himself under the Espionage Act all created the condition Trump needs to go after the press – not just legally, but in the court of public opinion.
As we saw last week with the bipartisan congressional subpoena of journalist Seth Harp, Americans and their representatives in Congress have been primed to accept the administration’s nonsensical claims that reporting government secrets is illegal “leaking” and that naming government officials driving the world’s biggest news stories is illegal “doxxing.”
It wasn’t always so easy to sell lawmakers on criminalizing routine journalism. Congress passed the Privacy Protection Act of 1980 in response to a raid of the Stanford Daily to find evidence against student demonstrators. The Daily, like Natanson, wasn’t accused of a crime.
The US supreme court rejected the Daily’s lawsuit challenging the search, but Congress stepped in, recognizing the dangers of allowing law enforcement to commandeer newsrooms whenever journalists might have evidence they want. Lawmakers may have also foreseen how pretextual raids and seizures could be used to intimidate journalists, or to stop their reporting in its tracks by seizing their drafts, communications and research.
The PPA was supposed to put an end to that. But the law is relatively toothless – victims can sue, but government officials can assert a good faith defense that essentially amounts to saying “my bad.” The law does not expressly bar admission of illegally seized evidence. That means its efficacy largely depends on police, prosecutors and judges taking it seriously.
Too often, they don’t. The 2023 raid of the Marion County Record – based on a bizarre claim that reporters violated identity theft laws by pursuing a tip about a local restauranteur’s driving record – became the most famous example after the paper’s co-owner Joan Meyer died from shock the next day.
Reached by email, her son, Record publisher Eric Meyer, expressed alarm at the Natanson raid. “Have law enforcement officials lost the ability to read?” he asked, noting the repeated disregard for the PPA’s protections. “The whole idea of searches and seizures isn’t about actually finding information. It’s about intimidating journalists and incriminating them in the eyes of the public.”
Also in 2023, Florida journalist Tim Burke’s home newsroom was ransacked by the FBI over Burke’s alleged violation of computer crime laws to find outtakes of Tucker Carlson’s Fox News interview with Ye where the musician went on an antisemitic rant. Many of the government’s tenuous legal theories have been dismissed (an appeal is pending) but the impact on Burke’s journalism can’t be undone. As Burke’s lawyer, Mark Rasch, explained, during newsroom raids “the government invariably seizes materials wholly unrelated to whatever they are investigating. That act alone has a chilling effect on freedom of the press.”
There have been other examples. Police in San Francisco raided the home and office of independent journalist Bryan Carmody in May 2019. The case against Carmody, like the Marion one, eventually fell apart and led to a lawsuit and settlement. But the initial raids are what get the publicity, not the repercussions that bad actors may or may not later face.
Case in point, San Francisco police again issued another unlawful warrant to an independent news outlet just five years after the Carmody debacle. And Kansas cops ignored the lessons of the Marion case and sought an illegal warrant for a newspaper last year.
The normalization of invading newsrooms, in violation of federal law and based on the flimsiest of pretexts, has now spread to the highest levels of the federal government (assuming prosecutors followed their own guidelines, the Natanson raid should have been approved by Pam Bondi, the attorney general, herself).
Combined with the decades-long attack on whistleblowers and national security journalists under a law that treats them no different from enemy spies, it’s a deadly weapon to be wielded against the free press, especially by a president who muses about journalists being beaten, jailed, and even raped in prison.
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Seth Stern is the Director of Advocacy at Freedom of the Press Foundation and a first amendment lawyer
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Chip Gibbons is the policy director of Defending Rights & Dissent. A journalist and researcher focusing on the US national security state, Gibbons is currently working on The Imperial Bureau, forthcoming from Verso Books; based heavily on archival research and documents obtained through the Freedom of Information Act
