BY DAVID SNYDER—Donald Trump is about to control the most powerful political megaphone in the world. As President, he will be able to move global markets, disrupt alliances, and start new conflicts (petty or grand) with a single Tweet. If the past is any guide, he will do these things on his own schedule, irrespective of news cycles, press conferences or diplomatic norms. And he will do them often.
There will be no shortage of communication coming from the Trump White House. But, again using past as prologue, there is likely to be very little information.
As a candidate, Trump displayed two traits that made him virtually impossible for journalists to cover in any conventional way. First, there is Trump’s well-documented talent for sowing informational chaos–making assertions unsupported by facts; assertions directly contradicted by the available facts; and assertions contradicting assertions made just days or even minutes before.
Trump’s governance-by-chaos will prompt a deluge of leaks. Will the inevitable backlash permanently damage press freedoms?
Second, Trump has made clear he has no interest in the traditions of political coverage that have developed over time to subject the President to the routine scrutiny of the press. Just one example: Trump doesn’t do press conferences. He hasn’t held one since July. In that time, he has Tweeted some 1,500 times.
The ability of the White House press corps to extract meaningful information from the Executive Branch during the Trump era promises to be seriously constrained, to say the least. But for the same reasons Trump is an impossible quarry for the conventional press, he is likely to be a never-ending font of leak-inspired journalism.
Chaos begets dissension, and dissension within the close ranks of government bureaucracy leads, inevitably, to leaks. Career public servants ignored by the boss will try to find someone else to tell. Reporters who don’t get their calls returned look elsewhere for information. We have already seen the results of this dynamic time and again with Trump.
So, prepare for the coming floods — first, of leaks, and then of retribution. What Trump’s chaos giveth away in the form of leaks it may try to taketh back in the form of witch hunts, criminal probes and routine intimidation of the Fourth Estate and their real and potential sources of information. How well the press stands up to such an onslaught could be critical to freedom of speech and of the press. A press that cannot gather real information is a press without freedom; a government sealed from within by fear is a government that cannot be held accountable.
It’s a safe bet that Trump will pull no punches in pursuing the sources of leaks, or the media outlets that publish them. Trump has made abundantly clear that he views journalists — as a group — as “scum,” and “disgusting.” He systematically denied press credentials to news outlets that covered him critically during the campaign. He has suggested that “freedom of the press” (among other things) was to blame for September’s series of bombings in New Jersey and New York.
Trump’s innermost circle has demonstrated enthusiasm for using the prosecutorial power of the government to seek revenge against disfavored journalists and protesters. Former Trump campaign manager Corey Lewandowski said the New York Times’ Executive Editor “should be in jail” because the Times published a portion of Trump’s tax returns. Trump himself said those who burn the American flag–an act held to be protected under the First Amendment by the Supreme Court–should be jailed or stripped of citizenship, “perhaps.”
Trump walks into an Executive Branch that is arguably as hostile to the press as any in modern times. President Obama brought more prosecutions of leakers under the vaguely worded Espionage Act of 1917 than all previous presidents combined. He was more aggressive than most presidents in pursuing confidential information from journalists. His Justice Department secretly subpoenaed and seized phone and email records from more than 100 Associated Press reporters over the course of two months in 2012–in direct violation of Justice Department policies governing subpoenas of journalists and news organizations. The “Insider Threat Program” instituted while Obama was in office requires employees of the government’s vast intelligence bureaucracy to (among other things) submit to routine polygraph tests asking whether they have disclosed any confidential information.
The consequences of Obama’s aggressive pursuit of whistleblowers are predictable. Due to the problem of rampant overclassification of government documents, the release of even relatively mundane information could have serious, even criminal, consequences for would-be leakers. As McClatchy reported in 2013, under Obama, “leaks to media are equated with espionage.”
It has to be assumed, given Trump’s own words over the past year, that he will make Obama’s escalation of leak prosecution look tame. Trump’s Justice Department could seek more federal grand jury subpoenas against reporters who rely on confidential sources. It could attempt to prosecute a journalist under the Espionage Act — something that has never been tried, but then Trump has shown little compunction in breaking with traditions and norms. It could follow the Obama Administration’s lead and disregard Justice Department policies against secret subpoenas to news organizations or journalists.
It is also possible that Trump will do none of these things. But his words to date suggest strongly otherwise. We disregard at our peril the threats of the showman-demagogue who soon will be President.
Journalism in the age of Trump will face formidable challenges, to be sure. But there is hope. Courageous whistleblowers have always been willing to stand up, despite potentially dire consequences, to alert the American people to misdeeds by those elected to govern them. Other leakers, intent mainly on creating chaos, hack and leak for the sake of hacking and leaking, but inadvertently improve our democracy by exposing problems that otherwise would never have been exposed.
Although many of the institutions that would protect and defend such whistleblowers, and the media who bring their alarms to the public, have been weakened in recent years, the law that protects them—starting with the United States Constitution—remains intact. Even the President of the United States can’t change that. At least not by himself.
David Snyder, a lawyer and journalist, is executive director of the First Amendment Coalition. The views expressed here do not necessarily reflect the opinions of the FAC Board of Directors.