Will Trump 2.0 ‘Come After’ Journalists?

Kash Patel, Donald Trump’s pick to head the FBI, has pledged to come after the media, raising the possibility of politically motivated prosecution of journalists. Photo: Gage Skidmore via Wikimedia Creative Commons (CC BY-SA 2.0).

WatchDog Opinion: Will Trump 2.0 ‘Come After’ Journalists?

By Joseph A. Davis

Last time we checked, the First Amendment was still in effect. Yet journalists are still being arrested in the U.S. And assaulted. And harassed. And worse. We will keep checking.

Donald Trump (who previously labeled the media “the enemy of the people”) referred ominously during his latest campaign to “the enemy within” and threatened to use the military against them. He was targeting political opponents such as California Democrats Adam Schiff and Nancy Pelosi, along with Kamala Harris and Joe Biden.

But he also included journalists who won’t disclose names of confidential sources.

Now comes Kash Patel, President-elect Trump’s current pick to head the FBI, who has promised to prosecute journalists who criticize Trump’s actions. That idea alone should ring alarm bells.

In a 2023 podcast with Trump ally Steve Bannon, Patel said: “Yes, we’re going to come after the people in the media who lied about American citizens, who helped Joe Biden rig presidential elections. We’re going to come after you, whether it’s criminally or civilly — we’ll figure that out.”

 

Patel’s statement is disturbingly vague. But

it raises the real possibility of politically

motivated prosecution of journalists.

 

Patel’s statement is disturbingly vague (“criminally or civilly”). But it raises the real possibility of politically motivated prosecution of journalists. And it reminds us of the demonstrated creativity of prosecutors in finding charges when they want to prosecute someone (more on that below).

So whether or not Trump loyalist Patel is eventually nominated or confirmed, press freedom will be a key issue in the next four years. Journalists and news media will be wise to arm themselves against new threats to press freedom.

 

What Trump 2.0 could do

Long before the prospect of Patel, the FBI has made many people’s lives miserable. But it can only investigate — not prosecute or convict. So Trump also wants to weaponize the Justice Department and the courts.

And WatchDog is sad to report that though it’s illegal — and should be — there are quite a few laws that could be misused by an administration trying to silence a critical press.

First, remember that Trump in 2022 publicly called for “termination” (may require subscription) of the Constitution (presumably including the First Amendment).

Moreover, there is the Espionage Act, which forbids disclosure of classified or national defense information. That is the law that was used to prosecute Daniel Ellsberg, Julian Assange and Chelsea Manning. It had hardly ever been used successfully against a journalist until the prosecution of Assange. Of course, there is also the fact that it was used to prosecute Trump himself in Jack Smith’s Mar-a-Lago documents case.

Then there is the Insurrection Act of 1792 (or 1807, depending on how you count). It gives the president authority to use federal troops to quell insurrection under certain limited conditions.

Right now, Trump is talking about using it mostly in support of his planned program of mass deportations of immigrants. But it could also be used to crack down on freedom of speech, such as protests.

 

What should be done?

Trump is hardly alone in legally targeting journalists. In 2006, Congress passed the “Animal Enterprise Terrorism Act,” which made it illegal for journalists to go undercover at factory farms.

And many states have newly toughened laws to imprison anti-pipeline protesters. At least 17 states have passed such laws. Journalists covering the protests have been arrested, too.

Then there is libel law. Libel law usually operates at the state level or under common law. But it would be possible for federal officials to use it under certain circumstances.

Trump has suggested he could “open up our libel laws” to thwart a critical press. The thing about libel suits is that the cost and hassle of defending against them would bankrupt many defendants.

 

So even if Patel’s confirmation fails,

the incoming Trump administration

can be expected to ‘come after’

the news media on several fronts.

 

So even if Patel’s confirmation fails, the incoming Trump administration can be expected to “come after” the news media on several fronts (legal or not).

The best solutions, of course, would be legislative. Congress could amend the Insurrection Act, the Posse Comitatus Act, the Espionage Act and other laws. But we are not betting that will happen in the next Congress.

In the meantime, the news media and press freedom groups should stay vigilant (heck … hypervigilant) for attacks on press freedom. And when threats do arise, we should, first of all, cover them journalistically and thoroughly.

Journalists and the groups that support press freedom will need to speak out loudly, stick together and be ready to go to court.

Joseph A. Davis is a freelance writer/editor in Washington, D.C. who has been writing about the environment since 1976. He writes SEJournal Online's TipSheet, Reporter's Toolbox and Issue Backgrounder, and curates SEJ's weekday news headlines service EJToday and @EJTodayNews. Davis also directs SEJ's Freedom of Information Project and writes the WatchDog opinion column.

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* From the weekly news magazine SEJournal Online, Vol. 9, No. 45. Content from each new issue of SEJournal Online is available to the public via the SEJournal Online main page. Subscribe to the e-newsletter here. And see past issues of the SEJournal archived here.