Whilst there has never been any doubt that the leakers within the US bureaucracy who have been leaking stories about Donald Trump and his administration are breaking the law, like most people I have assumed that the newspapers, media organisations and journalists who have been publishing the leaks are not doing so.
This is because of the defences which like most people I have assumed are available to the newspapers, media organisations and journalists which have been publishing these leaks under the First Amendment to the US Constitution (which explicits protects the freedom of the press) and through the public interest defence.
I have for some time begun to develop doubts about this as the campaign against Donald Trump and his administration has gathered force, and as the leaking has become increasingly cynical and abusive.
A report by Breitbart discussed in an article published for The Duran by my colleague Alex Christoforou has hardened those doubts.
This report appears to suggest that some journalists and newspapers such as The New York Times far from being passive recipients of leaks have been actively soliciting them.
Whilst I have to say that that comes as absolutely no surprise to me – or I suspect to anyone else – it does also look to me like incitement by journalists of public officials to break the law.
If so, then unless it is done for some genuine public interest purpose I doubt that the defences under the First Amendment and the public interest defence apply. Moreover if the illegal soliciting of leaks is being actively encouraged by the newspapers or media organisations the journalists work for, then I think it is not inconceivable that we could be in conspiracy territory.
The key point is that – as I discussed in a recent article – the leaking that we have been seeing since the November election cannot be considered genuine investigative journalism. Rather it looks like a joint enterprise by certain officials of the US government working in collaboration with some sections of the liberal media to embarrass and if possible bring down the country’s constitutionally elected President.
I do not agree with those who deny the need for such an investigation by saying it will prevent whistleblowing. Nothing about the leaks which have been been happening over the last few months resembles whistleblowing. On the contrary they have been a cynical exercise in destabilising the President and his administration by using the media to spread anonymously damaging but uncorroborated stories about him. As such they have not safeguarded democracy; they have undermined it.
The veteran conservative commentator Patrick Buchanan is of the same view
But there is a far larger story here, of which this Post piece is but an exhibit. It is the story of a concerted campaign, in which the anti-Trump media publish leaks, even criminal leaks, out of the FBI, CIA, NSA and NSC, to bring down a president whom the Beltway media and their deep-state collaborators both despise and wish to destroy.
Did Trump collude with Putin to defeat Clinton, the Beltway media demand to know, even as they daily collude with deep-state criminals to bring down the president of the United States.
(bold italics added)
This is a complex area of the law – the leading case in the US appears to be Brandenburg v. Ohio – and no doubt the journalists who have been inciting the leaks, and the newspapers and media organisations who employ them (and of course their lawyers) will have much to say in their defence.
It is also a fact that even if the Department of Justice is satisfied that there are legal grounds to bring a prosecution against these journalists, those prosecutions will presumably have to be brought in courts in the states where the journalists live and work.
Since these are overwhelmingly the eastern and western coastal states – where opposition to the President is very strong – the Department of Justice may find it difficult to obtain convictions in courts located in these states.
Nonetheless and despite these caveats, the possibility of criminal prosecutions being brought against the journalists and conceivably the media organisations who have engaged in this campaign of leaking damaging information about the President does not seem to me quite so farfetched as it did a short while ago.