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Home > Publications > Quill > Under Trump, A (Potentially) Bright Spot In A Foggy Landscape



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Thursday, February 23, 2017
Under Trump, A (Potentially) Bright Spot In A Foggy Landscape

Special Report: FOI

By Lucy Dalglish

President Donald Trump craves the spotlight.

For that reason alone, he will not shut out the media over the next four years. He is too dependent on their attention.

But he will continue to single out favorites for special treatment and bash those who cover him critically. And because they will not be able to rely upon him for consistency in policies and messages, he will drive his White House staffers, military advisers, diplomats, cabinet members, party officials and the White House press corps mad.

It will be easy for journalists to be distracted by governance via Twitter. While it’s impossible to dismiss tweets from the president, American democracy cannot afford a climate where journalists settle on passing along every tweet as gospel and ignore basic nuts-and-bolts accountability reporting. The president may be reckless in the way he handles social media, but journalists cannot do the same. Now more than ever, journalists must speak truth to power — and do so in emphatic, thoroughly researched, thoughtful coverage. America’s democracy depends on them.

The White House Correspondents’ Association’s role will become more important than ever. This is an opportunity for the WHCA to get more attention for holding the administration accountable than for its all-star party. I believe they are up to it.

But we cannot ignore a threshold problem facing American journalism. We have lost at least one generation of experienced government reporters to newsroom layoffs and buyouts. The White House will be covered, but I fear that coverage of Congress, the courts, state legislatures and local governments will continue to shrink.


The young journalists who colleges like mine graduate every year are enormously talented, have breathtaking digital skills and have great potential to produce thoughtful, authoritative journalism. But most are not yet equipped to handle day-to-day coverage of the federal executive, legislative and judicial branches of government.

The challenges are not limited to Washington coverage. Federal agencies are poised to make sweeping changes in federal health care, education, energy, economic, national security and environmental policy. Decisions made in Washington will be pushed down to the states, and local newsrooms are even less prepared to cover these issues. Accountability reporting is more important than at any time in my lifetime. Education and training for reporters who cover these issues and agencies are critical.

As journalists cover federal agencies and the local entities dependent on them, media lawyers will be laser focused on the Justice Department because no government agency has a greater impact on the day-to-day operations of the media.

Trump’s nominee for attorney general, Sen. Jeff Sessions (who at this writing is yet to be confirmed), is well-liked by his Senate colleagues for his congeniality and hard work. But I have sat through Senate Judiciary Committee hearings where Sessions aggressively tried to block passage of a federal shield law for journalists and user-friendly amendments to the federal Freedom of Information Act. I find it hard to imagine a prospective attorney general with a more dismissive attitude toward the media and basic government transparency. With his track record, the aggressive attitude of the Obama Justice Department toward journalists and whistleblowers will look like child’s play.

Here are a few things to watch for.

WHISTLEBLOWERS (A.K.A. LEAKERS)

Journalists frequently rely on insiders to provide them with information. The Obama administration expanded on the George W. Bush administration’s already robust attack on whistleblowers.

Attorney General Eric Holder, who was attorney general for most of Obama’s term in office, had to contend with leaks from Chelsea (then known as Bradley) Manning as well as Edward Snowden. Other prosecutions involved CIA employee Jeffrey Sterling, which kept journalist James Rosen under threat of jail for refusing to identify his sources for the better part of a decade; the State Department’s Stephen Kim, which resulted in the Holder Justice Department labeling Fox News’ James Rosen a “criminal co-conspirator” in an effort to execute a search warrant on his newsgathering materials; and National Security Agency executive Thomas Drake, who had the bulk of the whistleblower prosecution case against him dropped by the government on the eve of trial, causing the judge in the case to describe the Justice Department’s actions as “unconscionable.”

The Obama administration did not like leakers. However, when the press pushed back hard on several aggressive investigative tactics used by the Holder Justice Department, the attorney general agreed to adopt guidelines that made it less likely journalists would be sucked into a criminal case merely for doing their jobs. But the guidelines are merely guidelines. Attorney General Sessions could reverse them easily and quickly.

SUBPOENAS

The Holder Justice Department did not use subpoenas to get information from reporters as much as they might have. Technology made it possible for investigators to rely on digital tracks to identify sources used by reporters. Nevertheless, several unsuccessful attempts were made during the Obama years to adopt a federal shield law. Jeff Sessions opposed them all, often citing arguments consistent with his former role as a state attorney general and federal prosecutor accustomed to free reign in gathering evidence.

At one Judiciary Committee hearing in 2013, Sessions offered 27 amendments that would have gutted the bill. We still don’t have a federal shield law. But Holder’s Justice Department was on record supporting a shield law. It’s hard to imagine Sessions supporting one.

TRANPARENCY

For more than 40 years, incoming attorney generals have issued memoranda advising federal agencies as to how the federal Freedom of Information Act should be interpreted. For example, during the Clinton and Obama administrations, agencies were told to presume records were open and to make discretionary disclosures unless there was a “foreseeable harm” in doing so. During the George W. Bush administration, Attorney General John Ashcroft advised agencies to withhold discretionary information if they could find a privacy or national security justification to do so. While the language of each directive was something only a bureaucrat could understand or appreciate, the directives set a tone as to how transparent an administration would be.


Congress adopted and Obama signed amendments to FOIA in 2016 that locked in the Clinton/Obama standards for interpretation of FOIA. Sessions stalled the bill and was unsuccessful in efforts to weaken it. While those directives are now law, Sessions will undoubtedly issue a memorandum on how to interpret the new law.

There is plenty of wiggle room available to make it difficult for requesters to get information. For example, he could take a hard line on fees or aggressively fight FOIA lawsuits. Watch for a swing back to the Ashcroft attitude.

A POTENTIALLY BRIGHT NOTE

Ironically, the shield law bill that had the best chance of passage during the Obama years was co-sponsored in the House of Representatives by then-Rep. Mike Pence. During his years in Congress, Vice President Pence also formed a “Press Freedom Caucus” with Rep. Adam Schiff, D-Calif.

As Indiana’s governor, Pence signed a bill that increased transparency in the state’s economic development agency and vetoed a bill that would have allowed state agencies to charge a fee for searching for public records. On the other hand, he fought efforts to release emails under the state’s public records law and attempted to start a state-run news agency. Whether Vice President Pence will have any influence over these matter remains to be seen.

Lucy Dalglish is dean of the University of Maryland’s Philip Merrill School of Journalism. She previously served 12 years as executive director of the Reporters Committee for Freedom of the Press and was a media lawyer in private practice. From 1980 to 1993 she was a reporter for the St. Paul Pioneer Press. Email.

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