March 14-20 is Sunshine Week, an annual celebration of transparency and open government, featuring panel events exploring the public’s right to know, how to protect journalists, and how to improve access to essential information.
This year’s Sunshine Week is a particularly important opportunity to highlight threats to a free press, as the United States has seen a rise in journalist arrests, an erosion of local journalism, and an unprecedented indictment against a publisher.
As Merrick Garland has been confirmed as the new Attorney General, rights groups and journalists alike have been asking how the new Department of Justice will handle press freedom issues, particularly the prosecution of Julian Assange.
The free press faced unprecedented attacks under the Trump administration, from Trump calling the press the “enemy of the people” to federal officials targeting journalists at racial justice protests last year. The freedom of the press is fundamental to American democracy, and senators questioning Garland should ask if he will defend freedom of expression and freedom of the press. This includes asking whether he would support a federal journalists’ shield law and if he agrees with Attorney General Holder’s conclusion that whether or not one considers Julian Assange a “journalist,” there is no way to prosecute him for publishing classified information without opening the door to similar prosecutions of important investigative journalism.
Jameel Jaffer, Knight First Amendment Institute: “The Biden Administration Should Drop the Assange Case”
Of Trump’s many attacks on press freedom, however, it’s his Justice Department’s indictment of Julian Assange that could have the most significant implications over the long term. As I explained here and here, the Justice Department’s indictment of Assange focuses principally on activity that national security journalists engage in “routinely and as a necessary part of their work”—cultivating sources, communicating with them confidentially, soliciting information from them, protecting their identities from disclosure, and publishing classified information. As a result, a successful prosecution of Assange would have far-reaching implications both for national security journalists and for the news organizations that publish their work. This isn’t an accident. It’s likely why the Trump administration filed the indictment, as Jack Goldsmith observed here.
President Joe Biden plainly does not share Trump’s attitude toward the press. But the Assange case will present the Biden administration with an early test.
Knight First Amendment Institute: “A First Amendment Agenda for the New Administration”
9. Disclaim the use of the Espionage Act for the prosecution of journalists, sources, and publishers.
Both the Bush and Obama administrations relied on the Espionage Act to prosecute government insiders accused of providing sensitive information to the press. The Trump administration continued this trend, charging six individuals for disclosing information on matters such as possible war crimes committed in Afghanistan, racially discriminatory investigative practices within the FBI, and Russian interference in the 2016 election. It also charged Wikileaks founder Julian Assange under the Act, in the first use of the Act against a publisher. The use of the Espionage Act in these cases raises profound First Amendment concerns and threatens journalism that is crucial to our democracy. The Biden administration should reserve the Espionage Act for cases of classic espionage, and it should affirmatively disavow the use of the Act for the prosecution of journalists, sources, and publishers.
Dan Froomkin, Salon: “Questions for Joe Biden: There’s still so much we don’t know”
The state of the media
- One of the country’s major media outlets, Fox News, traffics in outright disinformation and far-right propaganda, arguably even incitement. Most other media outlets, by contrast, respect facts, to a greater or lesser degree. Do you personally see a gulf between Fox and the others? Would you encourage the public to consider them differently? Should the White House?
- Why is your administration still prosecuting Julian Assange? Did you approve the decision in February to continue seeking his extradition from the U.K.?
- Will you pledge not to use the Espionage Act of 1917 to pursue people who leak to journalists?
- How concerned are you about the decline of local journalism, and what do you think should be done about it?
…there are several cases where the Trump Justice Department ventured into undiscovered territory. The first category of such cases involves legal actions that are truly unprecedented, while the others are so wrapped up in President Trump’s attacks on the press that one wouldn’t expect to see them but for President Trump himself.
With respect to the first category, the clearest example is the Julian Assange spying prosecution. As noted above, recent administrations have expanded the use of federal spying laws, and especially the World War I-era Espionage Act, in attempts to criminalize the disclosure of national defense secrets to the press. Never before, however, has the Justice Department secured an indictment against an individual outside of government based on the mere act of publishing those secrets. But that is exactly what the Trump Justice Department succeeded in doing in the Assange case after the Obama team declined to indict.
It very much remains to be seen what will happen with the Assange case. In early January 2021, a British court denied an extradition request from the Justice Department, citing a high risk that Assange might kill himself in U.S. custody, but otherwise endorsing the government’s legal theories in the case, including its “pure publication” claims. And there will undoubtedly be some pressure to pursue the case, given that the government has long taken the position, though never in the direct prosecution of a reporter, that the act of disclosing secrets to the public, even by the press, is indeed covered by the Espionage Act. The Justice Department has vowed to continue to pursue extradition and appealed the lower court’s denial in February.
Whistleblowers Blog: “What Can New AG Merrick Garland Do For Whistleblowers?”
Garland’s record on whistleblowing as a Federal judge is strong. In 2004 and 2008 he penned opinions that supported or expanded the scope of the False Claims Act, America’s premier whistleblower law. In 1979, Garland served on a DOJ panel and demonstrated a strong understanding of the False Claims Act and its importance as a whistleblower and anti-fraud law. He has also defended strong whistleblower protections against retaliation.
In a recent editorial, Whistleblower Network News (WNN) called on Garland to advocate for essential changes to laws that concern whistleblowers, citing issues with the False Claims Act and other more recent laws. The editorial states that the False Claims Act can be further modernized to clarify the contentious “materiality” loophole that has let many companies off the hook. The piece also mentions the 2020 Anti-Money Laundering whistleblower law, which it claims requires serious revision to be effective. While fixing these laws will require cooperation of the legislature, Garland could single-handedly stop whistleblower prosecution under the Espionage Act, an antiquated law that both the Obama and Trump administrations used to stifle government whistleblowing. National Security Agency (NSA) whistleblower Reality Winner and many others still languish in federal prison as a result of what legal experts have said is a gross misuse of the Espionage Act.
National Law Review: “Message to Judge Garland: Make DOJ the ‘Whistleblower’s Advocate’”
In a historic speech entitled “The SEC as the Whistleblower’s Advocate,” the then-Chairman of the SEC, Mary Jo White explained the new relationship between the Commission and whistleblowers: “It is past time to stop wringing our hands about whistleblowers. They provide an invaluable public service, and they should be supported. And, we at the SEC increasingly see ourselves as the whistleblower’s advocate.”
Congress should demand that the new Attorney General follow this example. Judge Garland has the background and experience to transform the Justice Department’s whistleblower programs. Congress must ensure that this transformation is not delayed. It is time for the next Attorney General to make the Department of Justice the “Whistleblower’s Advocate.”