President Trump Can’t Jail Journalists for Reporting Leaks – Or Can He?

Could reporters really go to jail for publishing leaks? The answer is probably not. But we don’t really know with 100 percent certainty because the federal government has never tried to jail reporters under such circumstances before.

The wild card is a federal law called the Espionage Act of 1917. The federal law was created to prosecute spies, but it is so broadly worded that some fear it could be used against journalists. The law makes it a felony for an unauthorized person to receive or “communicate” “national defense” information to others with reason to believe that it could harm the United States or assist a foreign enemy. The punishment ranges from a $10,000 fine to imprisonment. The law has never been used against a journalist. Some legal experts argue that the law, if applied to journalists, is unconstitutional because it is vague, overbroad, and allows censorship of the press for lawfully obtained, critically important information. Already, the Trump administration’s Department of Justice is weighing filing Espionage Act charges laws against members of the WikiLeaks organization for its 2010 leak of diplomatic cables and military documents as well as the website’s disclosure of the CIA’s cyber-tools, the Post reported in April.

The press relies heavily on the landmark Pentagon Papers case from 1971 in which the Supreme Court ruled that the government cannot block publication of classified federal documents without concrete evidence of immediate, irreparable harm, akin to publishing the location of US troops during war. The court rejected the Nixon administration’s request to stop the New York Times and Washington Post from reporting about secret documents revealing that the government knew the Vietnam War was fruitless. But three justices suggested that the Nixon administration could prosecute the Times and the Post for violating the Espionage Act by publishing classified documents. The Nixon administration, however, did not try to prosecute the newspapers. The two men who leaked the Pentagon Papers — including military analyst Daniel Ellsberg — were charged with a felony under the Espionage Act, but the case was thrown out by a Los Angeles judge due to misconduct by the Nixon administration.