A New Normal

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It’s the summer of 2025, and the home screen of every major news outlet bears the same image: a journalist being escorted by a cloud of black suits across a brick plaza to a hearing at the federal courthouse in Alexandria, Virginia. She is the first American reporter ever to be charged under the Espionage Act. Commentators are invoking a promise made two years earlier by Mike Davis, now the acting attorney general, that, if given the chance, he would “rain hell on Washington, DC,” prosecuting enemies and pardoning allies. Now this journalist is facing fifteen counts of unlawfully acquiring, storing, and publicly sharing emails from White House staffers. The substance of the messages is not what would traditionally be considered a matter of national security: they pertained to plans for mass deportations that Donald Trump oversaw during his first few months back in office. But according to Trump’s legal advisers, the correspondence was covered by executive privilege.

Publishing those emails had been a revelatory scoop, partially because of the venue—not the pages of the New York Times or the Washington Post, but a Substack. More insider stories followed, turning the site into a Beltway must-read. Major outlets picked up the news. Within weeks, two West Wing aides were charged with espionage for sharing classified information with an “unindicted coconspirator.” After a grand jury drawn from the habitués of the national security apparatus in the Eastern District of Virginia handed down its indictment of the Substacker, Davis compared her work to that of Julian Assange, calling her a threat to America. Now she faces a prison sentence of up to a hundred and fifty years.

Given that the Substacker has little money to pay for lawyers—she may have a robust, loyal following, but she’s an independent operator of humble means—the American Civil Liberties Union and Amnesty International are rallying to her defense, arguing that the application of the Espionage Act to an American journalist is a clear violation of the First Amendment. The mainstream outlets that built on the original story now face their own legal trouble, as several newspaper and TV journalists have been ensnared in separate leak investigations. All the investigations follow a course familiar not just from the first Trump term, but from the Obama and Bush eras that preceded it. As soon as Davis was appointed acting attorney general—no permanent candidate to fill the office has been offered, even with Vice President J.D. Vance poised to break a tie in the evenly divided Senate—he threw out guidelines that had been drafted in 2021 by Merrick Garland largely prohibiting Justice Department prosecutors from seizing the records of journalists in leak investigations.

Even as more news outlets come under legal siege, it is still undoubtedly the Substacker’s espionage case that holds the public’s attention. She may soon be headed for a hearing in front of the Supreme Court, where a third of the justices were appointed by Trump. If the court holds that this reporter can be jailed for espionage, every journalist in America is wondering, could I?

That scenario is, of course, speculative. But as I spoke to lawyers and legal scholars in the closing weeks of the 2024 presidential campaign, it became clear that, more than any other means for a second Trump administration to stifle journalism, the Espionage Act offers the clearest path—largely because presidents of both parties have already used it to do just that. “It would be the most likely statute under which charges would be brought for a direct prosecution,” David McCraw, the deputy general counsel for the Times, told me. Jane Kirtley, a law professor at the University of Minnesota, agreed: “I would anticipate that if Trump were to be elected, we would certainly see the inclination to use the Espionage Act to target journalists that Trump doesn’t like.”

Since the eighties, the Espionage Act has served as the primary means of prosecuting government employees for disclosing confidential information. This century, the threat has grown significantly. During the George W. Bush administration, Judith Miller—a Times reporter whose coverage of the Iraq War drew upon what turned out to have been fabricated intelligence—was jailed for refusing to reveal a source being investigated under the Espionage Act. Around the same time, James Risen, who was then her colleague, commenced a yearslong court battle over source protection that continued into Barack Obama’s second term. Then came the case of Assange. The Obama administration did not pursue espionage charges, believing his work on WikiLeaks to be too close for comfort to mainstream journalism. But Bill Barr, who served as attorney general under Trump, did not share that misgiving. In 2019, Barr brought an indictment against Assange that included eighteen charges related to espionage, setting a precedent that a reporter can be charged for working with a source to reveal confidential information. “It’s very hard to distinguish him, as a nongovernment employee, from traditional journalists who receive and publish information,” McCraw said. “The fact that the government was willing to bring an indictment based on receiving and publishing information is concerning.”

Trump’s post-presidency legal challenges have raised the stakes. In the federal cases regarding his role in the deadly insurrection of January 6, 2021, and the confidential documents he stored at Mar-a-Lago, his lawyers have asserted that all internal White House communications fall under executive privilege, and that the president can classify (or declassify) material at will. Effectively, their argument is that what is and is not a state secret is a matter of presidential whim. Lauren Harper, of the Freedom of the Press Foundation, has observed that deep ambiguity in the language of both the Espionage Act and the classification system allows enormous leeway for government officials to keep their operations secret. “Those classification levels—‘secret,’ ‘top secret,’ and ‘confidential’—all have to do with varying degrees of damage to national security,” she said. “But the executive order on classification doesn’t define damage to national security, which makes the system inherently unwieldy and ripe for abuse.”

By the letter of the law, the Espionage Act prohibits the sharing or unauthorized retention of “information relating to the national defense.” What that actually means is open to broad interpretation. Recent history, Trump’s ongoing court battles, and the lines drawn against the press by members of his former administration in Project 2025 set the stage for a prosecutor to argue that practically all presidential communications qualify as national defense information, since they are covered by executive privilege. Should the courts agree with that interpretation, it would be not just reporters who cover the intelligence community or the Pentagon who would risk prosecution for espionage, but everyone in the White House press corps. In the event of a second Trump term, Heidi Kitrosser, a professor at Northwestern’s Pritzker Law School, told me, “it is not far-fetched” to imagine the Justice Department going after a political journalist for reporting on White House deliberations. Add to that a federal judiciary stacked with Trump appointees, and it’s plain, she said, that “your everyday White House correspondent would have to be concerned about potential prosecution.”

For all the danger that Trump represents to the media, the uncomfortable truth is that the risks journalists now face were created by widespread inattention to the gradual encroachment on press freedom that the Espionage Act made possible over the past century. The law was, at its origin, a product of the First World War: as the United States entered the fray, Woodrow Wilson sought to suppress “disloyal activities”; Thomas Watt Gregory, his attorney general, believed it necessary to restrict “warfare by propaganda.” The act, passed in 1917, aimed to suppress criticism of the conflict, including by acquiring and disseminating information related to the military. Examples of format were given: “document, writing, code book, signal book, sketch, photograph, photographic negative, blue print, plan, map, model, instrument, appliance, or note.” But the rules were murky regarding content—and who is or is not allowed to know it, aside from the fact that the information cannot “be used to the injury of the United States or to the advantage of a foreign nation.”

That the Espionage Act predated America’s document classification system made it especially hard to parse. The first attempt to standardize the idea of a state secret came in 1940, when Franklin Roosevelt signed an executive order creating the categories of “restricted,” “secret,” and “classified.” That categorization came to bear a few years later, when a case involving the Espionage Act appeared before Learned Hand, the jurist. “The section cannot cover information about all those activities which become tributary to ‘the national defense’ in time of war,” he wrote, “for in modern war there are none which do not.” Hand decided that forbidden material would have to involve secrets—though that wasn’t a word used in the legislation—not already published inside the United States. “Whatever it was lawful to broadcast throughout the country,” he wrote, “it was lawful to send abroad.”

During World War II, a grand jury decided not to impose an espionage indictment against the Chicago Tribune for reporting that the Navy had advance knowledge about the Japanese attack on the island of Midway. Three decades later, the Supreme Court rejected the Nixon administration’s argument that the New York Times’ resolve to publish the Pentagon Papers imperiled national security. Despite those victories, contemporaneous legal scholars were clear-eyed about how dangerous to the press the Espionage Act really was. In a piece published in the wake of the Pentagon Papers case, Harold Edgar and Benno C. Schmidt Jr., a pair of Columbia professors, wrote in the university’s law review that the Espionage Act “is in many respects incomprehensible.” Between Nixon’s willingness to probe the limits of his authority and the room left by the court, Edgar and Schmidt argued, the statute should be considered “a loaded gun pointed at newspapers and reporters.”

Since then, many journalists seem to have been lulled into a sense of invincibility by the protection the legal system previously extended to the Fourth Estate. Ronald Reagan, frustrated by judicial limits on shutting down press freedom, ordered his administration to pursue “all legal methods” of preventing unauthorized employees from sharing sensitive information with reporters. As the years went by, federal prosecutors pursued leak investigations on the sharing of government secrets with increasing aggression. That reached its logical conclusion in 2005, when Miller spent eighty-five days in jail. (Another reporter named in the same case, Time’s Matthew Cooper, managed to avoid prison time by making an eleventh-hour agreement with his source.)

In 2008, Risen was summoned by a grand jury seeking to compel him to reveal anonymous sources used in a book about the CIA. When a Bush-led subpoena had expired, Obama’s Justice Department refiled it, setting a tone of nontransparency and press hostility for an administration that went on to set the record for the most leak prosecutions in history. Obama’s Justice Department surveilled many journalists, including James Rosen, of Fox News, who was named a “coconspirator” when the FBI sought a search warrant for his emails. “The Obama and Bush people broke down the norms of not going after reporters,” Risen, who now writes for The Intercept, told me. His case also set a precedent for the legality of compelling journalists to testify, with a federal court finding that “the government need not make any special showing to obtain evidence of criminal conduct from a reporter in a criminal proceeding.” That decision came from the Fourth Circuit, which includes Maryland and Virginia—home jointly to the Pentagon, the CIA, and the NSA, and where most leak prosecutions are filed. Risen appealed, but the Supreme Court refused to hear his motion; he was able to walk free only because Attorney General Eric Holder opted not to force his testimony.

As Kitrosser told me, “The Obama administration paved new ground that Trump really ran across.” In just four years, Trump’s Justice Department charged eight individuals—including government officials and contractors—with espionage for sharing information with the press. That was the same number as the Obama administration, in half the time. Those prosecutions represent just a fraction of the three hundred and thirty-four leaks that Trump officials asked the Justice Department to investigate. Four journalists at the Times and three at the Post had their phone records seized; Barbara Starr, CNN’s Pentagon correspondent at the time, was subject to surveillance. Starr wrote on CNN’s website that “I had absolutely no knowledge that there were secret court proceedings against me in 2020 until late May 2021,” when they came to light in a letter from Joe Biden’s Justice Department. It was then that Starr learned CNN’s internal counsel “had successfully narrowed the scope from the original demand for more than 30,000 emails.” In the end, a judge ordered CNN to share with investigators many of Starr’s emails over a two-month period in 2017, but the reasons for the search—and which emails were retrieved—have never been made public.

When I spoke to Gabe Rottman, the policy director of the Reporters Committee for Freedom of the Press, he described how President Biden sought to correct the excesses of the Trump era: “Attorney General Merrick Garland significantly revised this internal policy that limits when and how members of the department can seek information from or regarding journalists, either using subpoenas or court orders and search warrants to get stuff directly from journalists or newsrooms, or to go to third parties like email or telephone providers.” Those revisions may have prevented some journalists from being dragged into leak investigations over the past three years, but the change reflects prosecutorial discretion, not a reshaping of the law. Carey Shenkman, a human rights lawyer and coauthor of A Century of Repression, a recent book about the long history of the Espionage Act being wielded against the press, compared the guidelines to “a pinkie promise.”

And despite its lighter touch with leak investigations, the Biden administration continued to prosecute Assange. Many lawyers see Assange’s plea agreement, this past June, as setting an alarming precedent, since it included his admission of guilt to multiple counts of conspiring not only to disclose confidential information, but also to obtain it. To the University of Minnesota’s Jane Kirtley, the case means that in the future, courts will be adjudicating whether a reporter’s asking a source for national defense information constitutes a conspiracy. If so, she said, “that’s a provision of the Espionage Act you could be charged under.”

Legal experts I spoke with doubted that the Justice Department would move directly from charging Assange to going after a major news outlet. A calculating prosecutor would likely prefer a half step, perhaps bringing a case “against someone that looks more like an independent journalist or a blogger,” Shenkman told me, “maybe even something like a livestreamer.” McCraw believes that the vulnerable outlets would include “news organizations that are smaller, less well funded, potentially less likely to have the ability to call on the public, writ large, to stand up for their journalism.” Whatever the case, identifying as a journalist—as Assange does—would not protect someone from prosecution, nor would working for a media organization. As Rottman put it, “There’s nothing in the law or in the DOJ policy that precludes charging a journalist for violation of the Espionage Act.” Imagining a second Trump term, “you have a president who tells us over and over and over again that he thinks his critics should be jailed,” Kitrosser said. “There is a long-standing norm of relative noninterference between the White House and law enforcement. Trump made very clear that he is and was, throughout his first presidency, more than eager to breach those norms.”

In an environment where political reporters could suddenly face aggressive leak investigations or prosecution, the first defense would be for members of the DC press corps to adopt the same habits as their colleagues on the national security beat, swapping out casual texts and standard-issue computer software for end-to-end encrypted messaging apps and cloak-and-dagger precautions. Peter Baker, the chief White House correspondent for the Times, does a bit of that already. “I follow the lead of my sources,” he said. “If a source would rather talk in person, or only use Signal or one of these encrypted services—they’re the ones who have more at risk.” He doesn’t foresee changing his approach in the event that Trump returns to the White House, however. “I’m more worried about our sources than us,” he said. “I think they have more to lose than us. I hope I’m not wrong about that.”

But cybersecurity is tricky. Say a document is shared over Signal, then stored in Google Drive and emailed to an editor as an attachment. Now that it’s in the Google Cloud, law enforcement can request that Google provide the document and place a gag order on that request, preventing the company from notifying the owner of the account about what’s going on. This procedure is sanctioned by a chapter within the US Code known as the pen/trap statute and by the Stored Communications Act, which grant authorities the ability to secretly surveil persons of interest under court orders that remain sealed indefinitely. If investigators obtain a warrant from the Foreign Intelligence Surveillance Court, they may be granted even more latitude. Notification is usually at the discretion of the prosecutor; reporters at CNN, the Times, and the Post learned they were surveilled during the Trump administration only because of Garland’s efforts, after the fact, to rebuild some amount of trust between the Justice Department and the news media.

In the case of a reporter falling subject to prosecution, no app can guarantee protection against a physical search warrant. “Signal isn’t going to do anything,” Shenkman said, “if somebody gets arrested and their phone gets taken and cracked open, right? They’re just going to open the Signal app and read all the messages.” Versions of that scenario may only come into play more often going forward, due to the dramatic increase in the number of classified documents made possible by electronic communications. Where Daniel Ellsberg once had to photocopy and physically deliver the Pentagon Papers to journalists he trusted, now a government whistleblower can share his entire inbox with a reporter in five minutes. In the view of Trump’s legal team, if that whistleblower worked in the White House, then every single one of the emails in that inbox could be covered by executive privilege. Someone “mishandling” classified information could then be charged three times per document: once for acquiring it, once for storing it, and once for sharing it. Each of those charges carries a maximum sentence of a decade in jail—which is why, before his plea deal, Assange faced a hundred and seventy-five years in prison.

In fairness, the risks will persist regardless of who wins the election; as McCraw put it, “We shouldn’t be lured into complacency.” Kamala Harris hasn’t said whether she would continue Biden’s policy of not engaging the press in leak investigations or return to the hard-line approach of Obama. One of the few statements that she has made on the subject of press freedom came in the lead-up to the 2020 Democratic primary, when she avoided directly answering a question from the Times about the Assange case by saying, “The Justice Department should make independent decisions about prosecutions based on facts and the law. I would restore an independent DOJ and would not dictate or direct prosecutions.” (A spokesperson for the Harris campaign did not respond to my requests for comment.)

But even if a Harris administration won’t bolster press freedom, a return of Trump to the White House would undeniably usher in a more hostile epoch. (His campaign did not respond to me, either.) Project 2025 outlines a number of threats, including in a chapter about the intelligence community assembled by Dustin Carmack, a former chief of staff to Trump’s director of national intelligence. “The Department of Justice should use all of the tools at its disposal to investigate leaks,” he wrote, “and should rescind damaging guidance by Attorney General Merrick Garland that limits investigators’ ability to identify records of unauthorized disclosures of classified information to the media.” Journalists I spoke with raised other fears, principally over Trump’s promise to “open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money.” Aside from Davis—the self-proclaimed “viceroy” to Trump, who excused away his “rain hell” remarks from 2023 as “trolling”—another possible attorney general might be Kash Patel, who served as the chief of staff in the defense department during Trump’s first term. “We will go out and find the conspirators not just in government, but in the media,” Patel said in an interview with Steve Bannon last year. “We’re going to come after you, whether it’s criminally or civilly.”

“You can imagine a compliant Justice Department and attorney general prosecuting opinion journalists, reporters, anyone who is in their view seen as derogatory,” David Smith, the UK-born Washington bureau chief of The Guardian, said. “That would be a tragedy. Britain and the rest of the world really admire the First Amendment and its protections. I love the transparency of this country.” A.G. Sulzberger, the Times’ publisher, recently described the preparations that his paper is making for a second Trump term, from “ensuring our reporters and editors know how to protect their sources and themselves” to understanding how communications service providers “will respond if federal agents make secret demands for phone logs or emails” to “preparing colleagues to remain resilient in the face of harassment campaigns.” McCraw declined to elaborate beyond saying that the Times has been helping staff look at ways “to not create records that would make your sources vulnerable or you vulnerable.” He added, “Those things are worth doing at any time, no matter who wins the election.”

When lawyers talk about threats to press freedom, they tend to cite precedent and the word of law. When political reporters do, they rarely mention anything aside from the inconveniences of hostile press secretaries and tentative sources. As I spoke to more journalists, that gap—between realistic possibility and lived experience—led me to a sense that many of them seem to take their ability to work unmolested by the government for granted, even as they acknowledge that Trump’s return to the White House could be destabilizing. “What we’ve seen through the Trump era—things that were once unthinkable kind of get laughed off,” Smith said. “Then a year or two later it’s like, ‘Oh god, he’s actually doing that.’”

Few political reporters seem willing to wrestle with the notion that Trump’s reelection could have real consequences for them personally. “I’ve covered five presidents,” as Baker put it. “All of them hated me.” The adversarial nature of the relationship is implicit, and the law hasn’t changed. Tara Palmeri, of Puck, is wary of Trump. “He may act more recklessly. There will be more yes men around him who actually effectuate his desires and wants,” she said. “If the bureaucracy is completely gutted and the Justice Department is all people following his orders, then anything’s possible. It could be a real nightmare scenario.” But she doesn’t anticipate altering her approach. “I’m not the type of reporter who changes my coverage based on fear or favor,” she said.

Independent political reporters are, in the end, among the most susceptible to prosecution. Tom LoBianco is a member of that cohort: the author of a Mike Pence biography, he previously worked for the Associated Press and Yahoo News, landing scoops about, among other things, Trump fundraiser Elliott Broidy’s offer to serve as a back channel between Saudi Arabia and the White House. Since the beginning of this year, LoBianco has been the lead author of a Substack called 24sight News, where, in March, he broke the story that Paul Manafort was being paid to advise the Trump campaign through a shell company called Winter Solstice Holdings LLC. “We wrote that, and I was very on edge,” LoBianco said. A practiced hand at producing sensitive investigative pieces, he learned about proper vetting through working with the AP’s media lawyers. But 24sight doesn’t have its own legal support on call. In May, he delivered another scoop, detailing the extent of Manafort’s involvement with Trump since 2023. For that piece, he’d contacted Manafort by text—but then became paranoid that the messages he’d received in reply had come from an impersonator. He felt confident publishing the story after confirming with a second source that he had the correct phone number. But his anxiety lingered for months. “You get your reporter fever dreams, the nightmares, and I woke up in the middle of the night,” he said. Given the risk involved, “there are things I might not pursue as much as an independent reporter than as someone with a lot of resources at my back.”

LoBianco said that he has only a passing familiarity with the Espionage Act, mostly from reading up on it while covering Trump’s classified-documents case. I told him what I’d learned about the history of the law’s use in leak investigations and the fears of legal scholars about the precedent set by the Assange case. “Trump could take control of the Justice Department and use it basically as his personal legal department,” LoBianco replied. To be sure, Trump has already changed the norms of Washington. “A lot of the old institutional guardrails—the ‘adults in the room,’ as they used to say—are gone,” he said. “The folks that Trump has around him now are more extreme.”

But after almost a decade, he found it hard to muster newly heightened concern about covering Trump. For one thing, he said, “at the same time he acts in this very bullying and threatening manner, he’s also on the phone with a good number of reporters”—the ultimate “secret” source. Perhaps more profoundly, a president throwing American reporters in jail is simply hard to picture. “I don’t know if that can happen,” LoBianco said. “We still have a court system, there’s still rules of evidence.” Project 2025 disturbed him, but as for the threat of prosecution, “I don’t know that, for me—personally, professionally—I am more concerned. I’m probably about the same level of concerned as I have been for much of the Trump era of American politics.” He’s continuing to deal with sources the same way, accepting tips by text. “I feel like I’ve found a good balance,” he said, “between something that’s highly sensitive versus flimflam political rumor.”

Of everyone I spoke to—and perhaps quite predictably so, given his sustained court drama—Risen was the most worried about a second Trump administration. “The second time around I think they’ll be much more dangerous for the press than they were the first time,” he said. “Wake up.”

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Kyle Paoletta is the author of American Oasis: Finding the Future in the Cities of the Southwest, which will be released by Pantheon in January. He lives in Cambridge, Massachusetts.