Is the Times a law unto itself?

Yesterday on FOX News Special Report, Chris Wallace led a panel discussion of Attorney General Sessions’s press conference announcing the Trump administration’s efforts to suppress leaks of classified information. Video of the segment is below.

In the course of the segment Charles Krauthammer addresses the applicable law in a manner that is extremely misleading. This is what he had to say on the legal issues (my transcription):

I thought we adjudicated this in Watergate days. We have an odd system but it is a traditional one where if there is an unauthorized leak of classified information — it’s illegal — the person who goes to jail is the leaker and not the receiver [i.e., the reporter]. We do want to have some protection for the First Amendment simply because we believe that the press needs to have protections even if some of them are unwarranted on the face of it because of the larger issue of having a free press and not being subject to prosecution. I think this is a losing proposition. I think in the end the Supreme Court will likely rule as it did 30 or 40 years ago and uphold the prerogatives of the press.

James Risen and the New York Times are the ne plus ultra of the alleged immunity that Krauthammer imputes to the press under the First Amendment. Recall, for example, the Bush administration’s ultimately futile plea on bended knee to Times managing editor Bill Keller et al. not to blow the National Security Agency’s terrorist eavesdropping program. After sitting on the story for 13 months, the Times published the story by Risen and Eric Lichtblau on December 16, 2005.

On its face the story violated the Espionage Act and assisted al Qaeda. Risen and Lichtblau were nevertheless rewarded with the Pultizer Prize for their treachery.

Late last year, Risen returned to the subject of the press’s prerogatives in the Times column “If Donald Trump targets journalists, thank Obama.” Risen still seethes over the Obama administration’s efforts to secure his testimony in the prosecution of former CIA officer Jeffrey Sterling.

Paul and I wrote about Risen’s role in the case many times, as in my posts “Risen rules” and “Lessons of the Risen case.” Risen thinks he has a First Amendment right to protect his sources from disclosure in a bona fide criminal prosecution. Pro tip: the courts do not agree, at least not yet. As I say, Risen presents the ne plus ultra of the Krauthammer version of the law here.

Is the press immune from the Espionage Act and the accomplice liability provisions of federal law? Is the New York Times a law unto itself? Are we really to live at the mercy of the judgment of the New York Times in the gravest matters of national security? This seems to me the question raised by the Times’s publication of Risen and Lichtblau’s Pulitzer Prize-winning story and similar stories before and after.

Krauthammer cites the adjudication of the issue “in Watergate days.” In doing so, he must be referring to the Supreme Court’s decision in the Pentagon Papers case, but Krauthammer’s account of it errs. In New York Times Co. v. United States, 403 U.S. 713 (1971)(“the Pentagon Papers case”), the Supreme Court held that it was presumptively unconstitutional for the government to restrain the publication of classified information. In separate opinions concurring with or dissenting from the order allowing the Times to continue publication of its Pentagon Papers stories, however, a majority of the justices contemplated that the Times could be held responsible for any violation of the law involved in publishing the stories.

Indeed, in their concurring opinions, Justices Douglas and White cited and discussed the Espionage Act’s section 798 as the prototype of a law that could be enforced against a newspaper following publication of information falling within the ambit of the statute. Justice White noted, for example:

The Criminal Code contains numerous provisions potentially relevant to these cases [against the Times and the Washington Post.] Section 797 makes it a crime to publish certain photographs or drawings of military installations. Section 798, also in precise language, proscribes knowing and willful publication of any classified information concerning the cryptographic systems or communication intelligence activities of the United States as well as any information obtained from communication intelligence operations. If any of the material here at issue is of this nature, the newspapers are presumably now on full notice of the position of the United States and must face the consequences if they publish. I would have no difficulty in sustaining convictions under these sections on facts that would not justify the intervention of equity and the imposition of a prior restraint. . . .

It is thus clear that Congress has addressed itself to the problems of protecting the security of the country and the national defense from unauthorized disclosure of potentially damaging information. It has not, however, authorized the injunctive remedy against threatened publication. It has apparently been satisfied to rely on criminal sanctions and their deterrent effect on the responsible as well as the irresponsible press. I am not, of course, saying that either of these newspapers has yet committed a crime or that either would commit a crime if it published all the material now in its possession. That matter must await resolution in the context of a criminal proceeding if one is instituted by the United States. In that event, the issue of guilt or innocence would be determined by procedures and standards quite different from those that have purported to govern these injunctive proceedings [to restrain publication].

While prior restraint is essentially prohibited, post-publication criminal responsibility is not. Five of the nine justices (White, Stewart, Blackmun, Burger, and Harlan) would have approved of criminal prosecution of the newspaper defendants in the Pentagon Papers case, even though a majority would not authorize a pre-publication injunction. Justice Marshall’s concurring opinion is also consistent with White’s analysis.

I conclude that the Times was not immune from criminal liability for violation of the federal espionage laws under the Pentagon Papers case. Gabriel Schoenfeld takes an illuminating look back at the case in his National Affairs essay “Rethinking the Pentagon Papers,” adapted from Necessary Secrets, his excellent book on the larger subject.

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