Press Coverage of DOJ Lacks in Analysis and Objectivity

by Matthew L. Schafer

On Thursday and Friday of this week, Attorney General Eric Holder met with various news organizations after revelations surfaced about the DOJ’s aggressive investigations of national security leaks.  During the investigations, the DOJ in one instance in federal court documents alleged that a reporter was a “co-conspirator” under the Espionage Act, and in another, the DOJ seized phone records without notice from the AP.

Reporters and news organizations have excoriated Holder, President Obama, and the DOJ for what they see as overreach that threatens long recognized principles underlying the freedom of the press.  Even congressmen, who only recently called out the media for publishing national information leaked to them, have expressed concern about the Administration’s recent actions.

Congress, however, is not an innocent third party in this drama.  Instead, Congress passed the Espionage Act that makes it illegal for unauthorized persons to receive or distribute classified information.


The  Senate Judiciary Committee believed the government would also have to allege under Privacy Protection Act’s exception for Espionage Act violations that the reporter “inten[ded] to injure the United States or give advantage to a foreign power.”  The Committee further explained, “For the purposes of this act the government shall recognize [this] standard, the requirement of intent, before utilizing the suspect exception for searches for materials sought under 18 U.S.C. 793.”


Congress also passed the Stored Communications Act that allows the government to seize reporters’ emails without a warrant and the Privacy Protection Act that was passed to protect reporters from warrants relating to their newsgathering but not if the government alleged that the reporter violated the Espionage Act – this is the so-called “suspect exception” to the Act.

To get around the cantankerous system Congress has set up then, the government had to allege that the reporter was a co-conspirator under the Espionage Act.  If it did not, then the Privacy Protection Act would have kicked in and prevented the government from seizing the emails in the first place.

To Congress’s credit, at least the Senate Judiciary Committee that approved the Privacy Protection Act in 1980 thought that the government would have to do more than just allege that the reporter violated the Espionage Act.

The  Senate Judiciary Committee believed the government would also have to allege under Privacy Protection Act’s exception for Espionage Act violations that the reporter “inten[ded] to injure the United States or give advantage to a foreign power.”  The Committee further explained, “For the purposes of this act the government shall recognize [this] standard, the requirement of intent, before utilizing the suspect exception for searches for materials sought under 18 U.S.C. 793.”

At the time, the DOJ testified that the intent requirement – even though a higher standard – was nonetheless sufficient to protect national security.

The Committee Report concluded its discussion of the topic, cautioning, “For the government to squelch [the media’s use of leaks] by the forceful means of seizure, to which the press has no opportunity to object in advance, comes very close to forcing the issue of first amendment freedom versus the power of the government.”

The government was aware of this report when it filed its affidavit in support of its application for a search warrant.  Indeed, the government quoted the report: “The purpose of the statute is to limit searches for materials held by persons involved in First Amendment activities who are themselves not suspected of participation in the criminal activity for which the materials are sought . . . .”

The government never alleged in its affidavit that the reporter intended to harm the United States.  And, there are no facts known to the general public that indicate in any way that the reporter intended to harm U.S. interests.

Moreover, the government failed to direct the magistrate judge to the heightened intent requirement in the very same report that was just a few paragraphs away from the language it quoted.  In short, the government deceived the magistrate judge at worst and negligently overlooked the intent of the legislators at best.


Moreover, the government failed to direct the magistrate judge to the heightened intent requirement in the very same report that was just a few paragraphs away from the language it quoted. In short, the government deceived the magistrate judge at worst and negligently overlooked the intent of the legislators at best.


Unfortunately, the press in the swirl of gut reactions and attendant yelling and screaming has overlooked this important fact.  Not a single news outlet has reported it.  To some extent, the omission is understandable; the press itself feels violated and has reacted as an interested party.

And, much as a lawyer who represents himself has an fool for a client, the press’s coverage of its own role in the DOJ controversy is so self-interested that the press has, in many respects, failed to dig into the important legal issues like the one outlined above, opting, instead, for visceral editorials.

The lack of any legal reporting is obvious.  For example, a quick Google News search for “‘Privacy Protection Act’ and leak” returns only a handful of results.  A similar search for “‘Espionage Act’ and leak” returns just a few more.  And, only two results show up for “‘Stored Communications Act’ and leak.”

The problem with these results?  All three of these statutes are fundamental to whether the press’s rights were actually violated or not, and, if so, how and to what extent.

Instead of informing the public about these statutes and how they affect both the public and the press’s rights to privacy, the press has chosen to throw all of its eggs into the considerably more ambiguous First Amendment basket, invoking its principles in broad terms.

Of course, it is easier to convey to the public the idea that the First Amendment has been violated, but the fact remains that it likely hasn’t – at least not under the Supreme Court’s current First Amendment jurisprudence, here and here.  So, it is unclear how useful or informative it is to constantly invoke the First Amendment, while ignoring the more directly applicable statutes.

To be sure, the press needs to address both the statutory and constitutional issues in its meetings with Holder this week.  There are some indications that the press is having these conversations with Holder.  But, in these conversations, the press needs to focus more so on those things it can control or influence: the development of statutes like those above and a shield law.

The press should not only have these discussions with Holder, but also, remedy the current coverage, and include these discussions on the front page.  Indeed, reporters should strive to explain these sometimes convoluted statutes to the public so the public knows what protections are currently afforded to its watchdog and how those protections can be improved.

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About Matthew L. Schafer

Matthew L. Schafer graduated from the University of Illinois in 2009 with a Bachelor of Science in Media Studies. He later attended Louisiana State University’s Manship School of Mass Communication where he earned a Masters of Mass Communication and Georgetown University Law Center where he earned his J.D.
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