Attorney David Snyder, executive director of the First Amendment Coalition, has been particularly busy since U.S. Attorney General Jeff Sessions announced on Aug. 4 that the Department of Justice would be stepping up its enforcement and prosecution of laws against leaks and could expand the number and scope of subpoenas for journalists.
But Snyder wasn't surprised by it. As a matter of fact, he predicted nearly all of it in a Jan. 4 blog post titled "Leaks in the Age of Trump The Coming Flood."
Snyder wrote, "So, prepare for the coming floods first, of leaks, and then of retribution. What Trump's chaos giveth away in the form of leaks it may try to taketh back in the form of witch hunts, criminal probes and routine intimidation of the Fourth Estate and their real and potential sources of information. How well the press stands up to such an onslaught could be critical to freedom of speech and of the press."
Before taking over as executive director at FAC, Snyder was an attorney in the San Francisco office of Sheppard, Mullin, Richter & Hampton, a global law firm. His practice included litigation and counseling in the areas of First Amendment rights, access to government information and intellectual property. Snyder, a reporter at the Washington Post before switching to a law career, has represented Mother Jones magazine, Salon and the San Jose Mercury News.
He's been in the position since January, and took some time to answer a few questions Wednesday morning.
Q: In light of all that's going on with President Donald Trump's war on the media and Attorney General Session's crackdown on leaks, what's the most pressing issue for you and your organization right now?
A: Probably the possibility of the Department of Justice using the Espionage Act of 1917 to prosecute journalists. It's a law that has been used for nearly a century to prosecute leakers of classified information from Daniel Ellsburg and Julius and Ethel Rosenberg to Edward Snowden and Chelsea Manning. The government has not ever successfully prosecuted journalists or media organizations that publish the offending leaks possibly because it was seen as a bad move in a nation that enshrines press protections in its founding document.
Q: You mean essentially going after journalists as if they were spies?
A: The successful prosecution of a journalist under the Espionage Act seems unlikely a long string of Supreme Court decisions supports the notion that reporters and news outlets are immune from civil or criminal liability when they publish information of legitimate public interest that was obtained unlawfully by an outside source.
"A stranger's illegal conduct does not suffice to remove the First Amendment shield about a matter of public concern," the court ruled in the 2001 Bartnicki v. Vopper case. But like any appellate decision, the Bartnicki ruling is based on a specific set of facts. So there are no guarantees here.
If it were to be accepted that journalists could be prosecuted as spies, it would be hugely problematic.
Q: The more likely flash point is on those subpoenas, right? What did Sessions say, that the Trump administration was pursuing three times as many cases as President Barack Obama had?
A: Yes, and remember, over the course of two months in 2012, Obama's Justice Department secretly subpoenaed and seized phone records from more than 100 Associated Press reporters.
President Trump and his surrogates in Congress have repeatedly tried to divert public discussion away from White House-Russia connections and in the direction of the leaks that brought those connections to light. It stands to reason that Trump's Justice Department will try to obtain the sources, notes, and communication records of journalists on the receiving end of the leaks.
Q: Is that going to increase the call for media lawyers?
A: Yes, if the number of subpoenas of journalists goes up then there certainly will be more work for media attorneys. There are plenty of really good media lawyers who are committed in a deep and meaningful way to seeing that government understands the essential role of the media in democracy.
But a problem is that there has been an explosion in the number of journalists who aren't connected to any organization, and if they are, it's likely to be small and it won't have a legal counsel, or even an attorney on retainer. So many magazines and newspapers have fewer full-time jobs, and they also don't have staff attorneys, so there is a real issue in terms of access to counsel.
Q: The fact is, a subpoena or the prosecution of a journalist doesn't have to be successful to have impact does it?
A: Without a doubt, the awareness of this potential for prosecution can have a chilling effect on those kind of sources. And to be clear here, we're not proponents of leaking for leaking's sake. But many leakers are whistleblowers who play a key role in the operation of our democracy. They expose wrongdoing, bad policies, and bad implementation of a policy.
The government can be justified in positioning some leaks as criminal activity, but it critical that they not go overboard and cast aspersions on the activity as a whole.
Q: In a recent blog you wished historians luck trying to chronicle the Trump White House because so many staffers are wary of being accused of leaking that they are using chat apps like Signal or Confide that erase a message after it's read. Those are official communications, so isn't that a violation of the Presidential Records Act of 1978?
A: To be clear here, many if not most records subject to preservation under the PRA will not be made available to the public for years, and some may be kept secret in perpetuity, but the point is that if they don't exist at all, there's no question they will never be available. These communications should be preserved so that at some point the public can have access to them.
I think because it's a chat on an app there's a perception for most of us that it's different than an official communication. But people need to realize that the medium is irrelevant when it comes to public records. The storage, creation, or maintenance of public records on private platforms does not change the fundamental nature of those records. They belong to the public.
Q: So what will it take to get the public to pay attention?
A: It was just a mention in a Washington Post story about something else, so I'm not sure a lot of people saw it. It will probably take a federal or high-profile case where a public official has some information, or should have some information, about a critical issue and doesn't because it was communicated using one of these apps.
Q: What made you switch from being a journalist to being a lawyer, or at least a journalist-lawyer-advocate?
A: Free speech was always central to what I do, and public access and transparency as well. When I went to law school I wasn't sure if I was going to practice law or stay in journalism. At one point I made a decision that I could have a bigger impact if I actually practiced law. Now, in my capacity as executive director here, I get to do some of both.
Contact Todd Cunningham at tcunningham@alm.com. On Twitter: @toddcnnnghm.
