Donald Trump has threatened to target journalists he describes as "the enemy of the people," and a new report warns he'll have three very powerful tools at his disposal.
His nominee for FBI director, Kash Patel, has already threatened to "come after" journalists he believes treated the former president unfairly and Trump himself has called for the FCC to revoke the licenses of "fake news" outlets who've drawn his ire.
Legal experts have concluded he could potentially do so by declaring a state of emergency, reported The Bulwark.
"Will Trump declare a national emergency and use the Communications Act to shutter stations of his choice?" wrote Gabriel Schoenfeld, a senior fellow at the Niskanen Center. "His nominations of individuals like Patel, Pete Hegseth, and Tulsi Gabbard (not to mention the dropout, Matt Gaetz) reveal that he intends to be a radical president, unconstrained by established norms and willing to push the law to the limits if not beyond them."
The Justice Department could also use broadly drawn espionage statutes, which Trump himself was accused of breaking in the Mar-a-Lago documents case, to target journalists who publish damaging information about the incoming president and his administration.
"While they serve the legitimate purpose of protecting the nation’s secrets, they are drawn in a way that can capture journalists in their web," Schoenfeld wrote. "As is well known, the U.S. government massively overclassifies information about its national defense activities. In the normal course of American journalism, the publication of such formally secret information is an everyday affair. Though the Justice Department has in recent years vigorously prosecuted leakers inside government who have passed classified information to journalists, it has left journalists themselves untouched."
However, WikiLeaks founder Julian Assange is a singular exception, having pleaded guilty in June to conspiracy to obtain and disclose national defense information, a violation of the Espionage Act of 1917, and the current U.S. Supreme Court might be more than willing to uphold prosecutions for reporters who publish information Trump would prefer kept secret or who refuse to divulge their sources.
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"The most celebrated, or notorious, case was that of Judith Miller, who refused to comply with the grand jury’s demands that she reveal her source in the Valerie Plame imbroglio. Miller was held in contempt of court and spent eighty-five days in jail."
There's no law stopping the Justice Department from making that rarely used authority into a routine practice, forcing reporters to choose between putting sources in danger and risking a jail sentence, but Schoenfeld said journalists should prepare for that possibility.
"Steve Bannon has warned that journalists and journalistic organizations had better 'lawyer up' as the Trump Justice Department would be coming for them," Schoenfeld wrote. "It is a warning that must be taken seriously.
"With a series of extreme appointments, the architecture of authoritarianism is being constructed before our eyes. Eviscerating the First Amendment will be a key part of that effort. When it comes to freedom of the press in the second Trump term, we are facing a five-alarm fire."
