Here’s Merrick Garland’s Orientation Memo for the Trump-Era Hangover on Press Freedom

When President Biden announced the nomination of Merrick Garland as the next attorney general, Biden criticized incendiary rhetoric against the press as contributing to the Jan. 6 assault on the U.S. Capitol. A new president—and new leadership at the Department of Justice—will mean turning a corner on a strenuous four years, in which the Justice Department was repeatedly drawn into then-President Trump’s attacks on journalists and First Amendment rights. 

The most prominent of these cases are well known: During Trump’s time in office, the Justice Department moved to suspend White House press credentials, attempted to prevent the publication of a preelection book that was critical of Trump, and flexed the department’s antitrust muscle to try to block a major merger involving CNN.

But never fully appreciated was the fact that Trump’s Justice Department was litigating against the press in a wide range of cases during his administration. And these cases aren’t just disappearing on Garland’s first day in the job. Indeed, the incoming Garland team has inherited, and now must grapple with, several thorny questions at the intersection of the news media and the law. 

While many readers might think that the highly visible indictment against Julian Assange for publishing government secrets is the most important of these holdover matters, it is only one of the hard cases that Garland will confront when he becomes attorney general. One of these—a quirky situation that would effectively make the Biden Justice Department Trump’s law firm in a private defamation case—places the new leadership in the surreal position of having to decide whether to continue to defend the former president’s use of sovereign immunity to jockey for advantage in his long-running libel wars. 

Traditionally, Justice Department officials are reluctant to abandon cases and litigation positions from a prior administration. But there are decisions Garland can make immediately in pending cases and proactively as well—including, for instance, ordering an investigation into arrests and uses of force against journalists during the turmoil of the last year—that would help bolster newsgathering protections at a time when they are sorely needed. With a judicial record that shows a strong commitment to transparency and press rights, Garland may just be the attorney general the moment calls for.

The Nixon presidency, the last remotely comparable administration in terms of hostility and vindictiveness toward the press, witnessed three existential showdowns at the Supreme Court testing press rights. In the Pentagon Papers case, Nixon’s Justice Department failed to muzzle reporting in the New York Times and the Washington Post that was critical of the government’s Vietnam War strategy. In Branzburg v. Hayes, Nixon’s solicitor general urged the court to reject a First Amendment-based reporter’s privilege to protect confidential sources. And in Miami Herald v. Tornillo, decided just weeks before Nixon’s resignation, the court knocked down Florida’s “right of reply” statute. While the Justice Department did not participate in Tornillo, Nixon publicly embraced Florida’s effort to handcuff newsrooms—and the justices voted 9-0 against him.

The Trump years did not produce these kinds of Supreme Court cases. But the Trump Justice Department more than made up for it with a lower court press docket that kept growing. These cases were, by turns, both ordinary and extraordinary. Some of them—such as those that built on the recent trend in leak cases of prosecuting reporters’ sources as spies—reflect the unfortunate reality that certain norms governing the news media and its relationship to the government have eroded over time. Others, including the Assange prosecution, are truly anomalies in American legal history.

Then there are cases where the line is blurry, where some form of the case wouldn’t be that much of a surprise under recent administrations, but where the Trump Justice Department has taken an unusually maximalist position. The civil suit against former National Security Adviser John Bolton for allegedly disclosing classified information in his memoir probably fits here. The action against Bolton—which claimed he violated the terms of his security clearance—isn’t unprecedented. But the Trump Justice Department went further and sought a global ban on the sale of a book embarrassing to the president before an election. That was a big swing.

Even as the fears ease, this review of the Trump Justice Department’s record offers a sobering message for press rights going forward. The threats to legal protections for journalists predated Trump and they will postdate him as well. Prioritizing national security at the expense of confidential source relationships will continue to squeeze newsrooms. The expansion of media law has stalled at the Supreme Court, with no new cases in decades. Financial challenges industrywide mean fewer resources for the big First Amendment fights. While new precedents for the digital age could be around the corner, the arrival of a Biden team at the Justice Department does not mean a quick escape from the press rights challenges of the present. 

The Ordinary

Leak Cases and Gathering Evidence From Reporters

The Justice Department under President Trump prosecuted eight journalistic sources for leaking government secrets to the press. President Obama’s prosecutors charged ten. While these prosecutions amount to a significant uptick (the past two administrations pursued far more cases than all other administrations combined), the Trump administration’s approach was marked by more aggressive sentencing and it brought those eight cases in half the time. 

That said, the impact of the leak cases on news organizations during the Obama years was substantial. In one case, then-Attorney General Eric Holder’s Justice Department secretly seized Associated Press phone records covering more than a hundred reporters. The same department also sought an FBI warrant for a reporter’s emails under the theory that the journalist was a “co-conspirator” who illegally conspired with a source by encouraging the source to provide information. 

These controversies led Holder to toughen a set of decades-old internal guidelines limiting when and how prosecutors can obtain information from journalists. And despite concerns that Attorney General Jeff Sessions would walk

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