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Jan 18, 2017

What Trump can do to thwart the press

My latest column for the South Carolina Press Association discusses actions that Donald Trump and his administration can take unilaterally – without assent from any other branch of government – against the press, or at least the news media’s ability to collect and disseminate information.

During his campaign, president-elect Donald Trump notoriously promised that he would “open up our libel laws so when they [the media] write purposely negative and horrible and false articles, we can sue them and win lots of money." He also repeatedly insulted the press, calling it "dishonest," "not good people," "scum," "slime," "dishonest" and "disgusting;" and calling the political press “among the most dishonest people that I have ever met.”

As I discussed in my November column, it would be difficult for President Trump to actually make changes to defamation law, since that would require either a U.S. Supreme Court ruling overturning over 50 years of precedent or a constitutional amendment. And other legal changes that would affect the media could not be accomplished by the president alone: he would need the agreement and acquiesce of Congress, and, eventually, the courts.

But there are several actions that Trump and his administration can take unilaterally – without assent from any other branch of government – against the press, or at least the news media’s ability to collect and disseminate information. Most of these actions could, of course, be challenged in court; but until a court rules or issues some sort of injunction, the new rules could still have an effect.

Tightening up FOIA: The federal Freedom of Information Act generally provides that federal agencies should respond to requests under the Act quickly, and that the agencies should provide all documents that respond to the request. Agencies are, however, permitted – but not required – to withhold certain information that falls within one or more of the nine exemptions in the statute.

Because the exemptions are not absolutely mandatory, the administration has some amount of leeway in how strictly it will apply the exemptions: a policy usually fashioned by the Attorney General.

As administrations and attorneys general have changed, so has this policy. Janet Reno, Bill Clinton’s attorney general, instructed agencies to release information even if it fell within one of the FOIA exemptions, unless releasing the information would cause some “foreseeable harm.” Then in 2001, President George W. Bush’s attorney general, John Ashcroft, changed the policy to one urging agencies to thoroughly consider whether information could be withheld under any of the exemptions, and promising that the Justice Department would defend these decisions in court. On his first day in office 2009, President Obama made a show of issuing memos directing his attorney general – Eric Holder – to re-adopt the standards for FOIA disclosure that Reno had adopted. In his own memo following Obama’s directive, Holder wrote that agencies should presume that records are open, and “should not withhold records merely because it can demonstrate, as a technical matter, that the records fall within the scope of a FOIA exemption.”

This policy was enacted into law last year by the FOIA Improvement Act of 2016, which provides that agencies “shall withhold information” under the FOIA “only if the agency reasonably foresees that disclosure would harm an interest protected by an exemption” or “disclosure is prohibited by law.”

But the new law still allows some wiggle room, and it is possible for a policy like Ashcroft’s to still be adopted. In his confirmation hearing, attorney general nominee Jeff Sessions said that the Freedom of Information Act is “law” that “need[s] to be followed,” and committed to doing so.

Subpoenaing journalists’ records: In 1970 the Justice Department adopted guidelines which provided that federal prosecutors would not subpoena journalists’ notes or other records without first exploring all alternative sources of the information sought. If that fails prosecutors are required to negotiate with the journalist to limit the required disclosure, and perhaps obviate the need for a subpoena. Finally, if it is absolutely necessary, any such subpoena must be personally approved by the attorney general.

The regulation was expanded to cover subpoenas of journalists’ phone records in 1980. But that did not prevent the government from subpoenaing phone records of two New York Times reporters in 2001 as part of an investigation of leaks of plans to freeze assets of two foundations alleged to be raising money for terrorists. More recently, in 2013 the Justice Department subpoenaed two months of telephone records of 20 phone lines at the Associated Press, in an investigation of leaks that led to an AP story about a CIA operation in Yemen that stopped an Al-Qaeda plot to explode an airplane bound to the United States. The same year, the government obtained phone records and email header information – but not content – between Fox News reporter James Rosen and State Department contractor Stephen Jin-Woo Kim, who was indicted for releasing information regarding North Korea’s plans for a nuclear bomb test. Kim eventually plead guilty to a reduced charge. Rosen was named as a “co-conspirator” in the case, the first time that a reporter has been given such a label in a leak case.

In response to news media objections to these and other cases, in 2014 and 2015 Attorney General Holder modified the regulation to ensure notice to a reporter whose information is subpoenaed and to require a warrant to obtain records of any journalist involved in “newsgathering activities.”

But the revised regulations still give leeway to the attorney general. During his confirmation hearing, Sen. Amy Klobuchar asked Sessions whether he would “commit to following the standards already in place at the Justice Department” and whether he would “make that commitment not to put reporters in jail for doing their jobs.” Sessions replied that he was “not sure,” adding that “I have not studied those regulations.”

Press credentials and questions: During the campaign, Trump expressed his pique at various news organizations by denying them press credentials to cover his rallies and events. While Trump said that he would not use this technique once elected, only time will tell.

As far as the law is concerned, courts have generally held that elected officials that hold press conferences in government facilities – such as the White House – cannot pick and choose which organizations are entitled to attend except by using objective criteria (such as audience, national coverage, etc.). But of course, enforcing these rights may require any organization that is barred to go to court.

That does not mean, however, that the elected official is obliged to entertain any questions at that press conference from an organization that s/he does not wish to speak to: the courts have held that such a refusal is not a First Amendment violation. So we may see more spectacles like Trump’s Jan. 11 press conference, where he refused to answer any questions from CNN reporter Jim Acosta.

Overall, the years of Trump’s presidency may be difficult ones for the press, from both a legal and public relations perspective. Many presidents have tried to greater or lesser extents to “get around” the professional media, in order to deliver their messages directly to their supporters. Trump has been a master at this for decades, and it looks like he will continue to do so from the presidential “bully pulpit.” The press – and their lawyers – need to be ready to fight back when he and his administration do this in a way that imperils the First Amendment rights to freedom of speech and the press.

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