Trump Uses Leak Probes to Target Press Freedoms

A lot of things happened. Here are some of the things. This is TPM’s Morning Memo.

‘Treason’

Rattled by leaks from within his own administration about the Iran War, President Trump has directed acting Attorney General Todd Blanche to target reporters and news organizations who are the recipients of the leaks, according to new reporting.

“In one meeting, Trump passed a stack of news articles he and other senior officials thought threatened national security to Blanche with a sticky note on it that said ‘treason,'” an administration official told the WSJ, which was itself the recipient of a grand jury subpoena in a leak case.

Rather than abide by longstanding DOJ policy that journalists should only be subpoenaed as a last resort when other investigative tools have come up empty, Blanche has been eager to follow Trump’s direction.

“If it means sending a subpoena to the reporter, that’s exactly what we should do and that’s exactly what we will be doing,” Blanche said in a press conference last month. It came the day after Trump had complained about news reports on the rescue of a U.S. airman downed in Iran: “We’re going to go to the media company that released it, and we’re going to say, ‘national security; give it up or go to jail.'”

The combination of Trump accusing reporters of “treason” for exercising their First Amendment rights and eagerness to see them jailed with Blanche’s willingness to go along strongly suggests that they are using leak probes in part as a pretext for targeting independent media.

More Questions Than Answers

The reporting so far is rather murky on the scope of the Trump assault on press freedoms.

The WSJ revealed for the first time yesterday that it and its reporters received grand jury subpoenas dated March 4 for records related to a Feb. 23 story it published titled “Pentagon Flags Risks of a Major Operation Against Iran.”

But despite its self-reveal, the WSJ story raised as many questions as it answered, among them:

• When did the WSJ receive the subpoenas? If it was back in March, why did it wait more than two months to disclose the existence of the subpoenas?
• Did all three reporters on the byline for Feb. 23 the story — Alexander Ward, Lara Seligman, and Shelby Holliday — receive subpoenas? The story implied they did, but didn’t say so explicitly.
• Is the WSJ seeking to quash the subpoenas? Even that wasn’t clear, with a spokesperson for the WSJ’s parent company Dow Jones saying vaguely: “We will vigorously oppose this effort to stifle and intimidate essential reporting.”
• Did Axios and the WaPo, which each published similar stories on Feb. 23, also receive grand jury subpoenas? When asked, neither outlet would comment to the WSJ.
• Did the New York Times receive a subpoena over its April 7 article that also reportedly angered Trump? When asked, the NYT would not comment to the WSJ.

In a follow-up story that didn’t address whether it had also been subpoenaed, the NYT reported that the WSJ inquiry “is one of multiple leak investigations being conducted by the U.S. attorney’s office in the Eastern District of Virginia.” The story did not indicate whether other news outlets had been targeted in those leak investigations.

The WSJ article leaves the impression that it’s not alone in being targeted: “In recent months, prosecutors have sent subpoenas to media organizations as well as to email and phone providers seeking information in leak inquiries, according to people familiar with the requests.” (The other high-profile leak case involving journalists is that of Washington Post reporter Hannah Natanson, which went further than a subpoena to include a search of her home, car, and phone.)

The WSJ did not say whether its email and phone providers had been subpoenaed, though might not know if they had been.

Trump DOJ Watch

• John A. Sarcone III, the top federal prosecutor in the Northern District of New York, has been found to have engaged in professional misconduct by a committee of the state appeals court. Neither the details of his misconduct nor the sanction against him were made public, but the disciplinary action came in response to a complaint by a watchdog group. Sarcone was at one point last year the acting U.S. attorney in Albany until the district judges declined to extended his term. In one of the Trump DOJ’s clashes with the judiciary over U.S. attorneys, Sarcone has been running the office as first assistant without a U.S. attorney in place.
• Former FBI Director James Comey took the relatively unusual step of doing a national TV interview while under indictment, ostensibly to promote his new crime novel. He didn’t comment at length about his new indictment, but provided extensive commentary on the weaponization of the Trump DOJ, including the concocted investigation in Florida of a “grand conspiracy” against Trump: “They found an 81-year-old guy, Joe diGenova, to come back to government for the first time since Duran Duran was on the charts and lead an investigation.”
• Alabama Republican Attorney General Steve Marshall has seized on the Trump DOJ’s politicized indictment of the Southern Poverty Law Center to launch his own investigation of the civil rights group. He sounds very measured and sober about it: “Thanks to the U.S. Justice Department’s action to deal with the S.P.L.C., the state’s efforts have now received a shot in the arm,” Marshall said in a statement. “We look forward to learning more about the inner workings of an organization that we have long believed was rotten, but until recently, has been impervious.”

SCOTUS Goes From Bad to Worse

The Roberts Courts’ hypocritical, inconsistent, politicized, and unexplained decision yesterday to effectively allow Alabama to eliminate at least one of its majority-Black congressional districts and run House elections on a new map was the cherry on top of the shit sundae of Louisiana v. Callais.

The timing, just a week before the scheduled primary, was especially egregious considering the court’s erratic history of applying the Purcell principle — its own oft-cited maxim that federal courts shouldn’t intervene too close to elections — but there’s lots here that further delegitimizes the court:

• Georgetown law professor Steve Vladeck (writing yesterday before the Supreme Court acted in the Alabama cases): “[G]ranting emergency relief in the Alabama cases, in particular, would bespeak blinding hypocrisy on the Court’s part—not only because it was this same Court that agreed with the district courts three years ago that Alabama had violated both the VRA and the Equal Protection Clause (in a majority opinion by Chief Justice Roberts), but because Justice Alito’s majority opinion in Callais labored mightily to distinguish that ruling—not to overrule it.”
• Reporter Ari Berman: “This is absolutely outrageous. SCOTUS reinstated Texas gerrymander 15 weeks before primary because they claimed it was too close to election to block it but now allowing Alabama to gerrymander one week before primary after trial court found map was intentionally discriminatory against Black voters.”
• Former U.S. Attorney Joyce Vance, on how the court’s decision doesn’t just turn the Purcell principle on its head, it turns it on its head in this case: “Despite Black Voters’ win three years ago, which meant the Court found that the maps the state legislature had drawn illegally discriminated against them, the state went through an additional election cycle using those maps. Alabama had argued that any changes, sought in February ahead of a June primary, came too close to the election and violated the Purcell principle. … Meanwhile, the Supreme Court just made the mother of all changes in Alabama one week before the primary.”

Another Problem With Louisiana v. Callais

At the core of Justice Samuel Alito’s majority opinion eviscerating the Voting Rights act is a statistical error that “would get your paper sent back to you with lots of red ink in statistics 101,” G. Elliott Morris writes:

The six Republican-appointed justices on the United States Supreme Court have found a magical solution to political polarization. All you have to do is take a partisan election result and subtract out the effects of party loyalty on the result.
…

The problem is that in modern America, party isn’t a variable that operates independently of race. Rather, political party is largely downstream of one’s race. If you subtract the effects of political party from the analysis of polarization, you are subtracting away the very evidence of polarization you are trying to study!

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