Analysis & Comment

Opinion | Did Schiff Poke a Hole in the First Amendment?

Last week, the House Judiciary Committee debated articles of impeachment drawn from a densely argued, sharply worded 300-page report that the Democratic majority on the House Intelligence Committee produced. It is an investigative tour de force, written for posterity. In considerable detail, using interviews and records, it describes, for example, how President Trump’s top personal adviser, Rudolph W. Giuliani, traipsed across Europe, circumventing diplomats as he furthered the president’s direct political interests. It also delves into the circumstances behind Mr. Giuliani’s repeated contacts with a reporter, John Solomon of The Hill, and marshals a case that Mr. Solomon’s reporting helped push a false and damaging narrative about the then-serving American ambassador to Ukraine, Marie Yovanovitch.

The committee chairman, Representative Adam Schiff, believed that a detailed description of Mr. Solomon’s contacts with Mr. Giuliani and with Ukrainians were germane to the core of the case for impeachment against Mr. Trump, because the report speaks to the flood of misinformation that may have persuaded President Trump to act so recklessly.

But those who care about the vitality of journalism should here take a pause and ask why they don’t feel disturbed. John Solomon’s investigative articles for The Hill may have been wrong, they were often misleading, and they were (judiciously, unwittingly?) used to further a conspiracy to oust a respected American ambassador. Mr. Solomon is a dogged, prideful investigator who worked with The Associated Press and The Washington Post before his political inclinations became more manifest and his penchant for accepting conclusions congenial to Republican partisans became a calling card.

But in revealing whom Mr. Solomon talked with, and when, Mr. Schiff and his committee have created a new pathway for the government to find and reveal a reporter’s sources and to question his or her motives. That is wrong. The legislative branch should not use its subpoena power to police journalism.

Mr. Schiff’s pathway could easily be considered a precedent. And the government does not need more encouragement to out a journalist’s sources. The executive branch, in the institutions of the Department of Justice and the F.B.I., has used metadata — call records and routing information not protected by the Fourth Amendment — to document reporters’ contacts with their sources in a number of cases in which the source has subsequently been imprisoned. The public interest case for prosecuting leakers is easy to make. But we should note that the government’s obligation to protect national security and a reporter’s duty to uncover abuses of executive power often clash. Whom you side with at those junctures depends on which tribe you belong to. I’m a journalist, so I often side with the journalists.

I do have a big problem when journalists wittingly or unwittingly collude with foreign governments to degrade the institutions of democracy that we rely on. And while I’m tempted to assert that Congress has no business ever poking its nose into reporting, I can’t deny the circumstances that collided here; Mr. Solomon is part of this story. But to deny him any First Amendment protection of his work is to fail to see beyond the immediate ramifications of Mr. Schiff’s decision. If Republicans regain control of the House, what would prevent them from using the same tactic to pummel the press for stories its members don’t like? Ah, but what if the reporters have been consorting with liars and cons, as seems to be the case here?

Well, the worst people often have the best available information, and judgment calls are a humble part of the journalistic enterprise. Congress should recognize this and acknowledge that it is important.

Mr. Schiff did not subpoena Mr. Solomon directly, and his staff seems to believe that this settles the matter. But it should not. Mr. Schiff has effectively punished a reporter for reporting. And punishments that might be levied for errors in reporting and for apparent partisan bias should never come from the government. Journalists who don’t object to this investigative practice will conspire to make it much easier for future entities in government to harass reporters who are pursuing the truth.

It pains me to see some of our most respected advocates for press freedom default to the view that Congress’s procedures were duly followed and, while there may be some ickiness in the air, Republicans who have complained about Mr. Schiff’s methods have no right to complain about intrusive government. This argument does not track, though, especially during a week when the Justice Department’s inspector general revealed serious and potentially material deficiencies in the F.B.I.’s application to renew a Foreign Intelligence Surveillance Act order against Carter Page, a low-level Trump foreign policy aide whom the F.B.I. suspected might have a been a conduit for the Russian government to control or influence the Trump campaign. (There is no evidence that Mr. Page, a serial entrepreneur with some dubious friends, served in this role.)

Another way to minimize the First Amendment implications of Mr. Schiff’s decision is to note that President Trump represents (and indeed has become) a far worse threat to a free press than any consequence of a procedurally appropriate congressional investigation. I agree with the statement of value: that Mr. Trump has beguiled, bewildered and bullied the press to a point of real danger. Labeling the press the enemy, arguing for looser libel laws, threatening broadcast licenses, gleefully encouraging his followers’ worst assumptions about the role of reporters — all but invites us to consider him a national security threat the way some of his own appointees came to. But Trump being Trump is not an excuse for lowering the threshold for First Amendment vigilance elsewhere. Indeed, we should raise our voices even louder when other institutions of government make public a more casual appreciation of the First Amendment. Making sure that Congress passes rules that limit the use of subpoenas to inspect or reveal reporter-source relationships should be a priority.

Much of what the public knows about President Trump’s conduct in office comes from journalists who have not been cowed by the enormous power wielded by the executive branch and its investigative capabilities. The civic emergency within which we are working will be exacerbated if we excuse or brush off an abuse of power because it supports our side.

Marc Ambinder (@marcambinder) leads the Annenberg digital security initiative at the University of Southern California. He also teaches national security reporting.

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