Expect a new narrative out of White House soon

Sure, President Donald J. Trump's sharing of classified intelligence with senior Russian officials was, at best, clumsy. But officials who heard the remarks called national security and intelligence officials almost immediately to limit the damage from the comments. The fallout could have been limited - if nobody had leaked it to the press or the press hadn't reported it.

But they did. And they are the real problem.

There is a point to that message.

After all, Barack Obama's administration targeted reporters and leakers more than all previous administrations combined. He defended that record, of course. But he also told the Rutgers University newspaper: "I think that when you hear stories about us cracking down on whistle blowers or what-not, we're talking about a really small sample. Some of them are very serious, where you had purposeful leaks of information that could harm or threaten operations or individuals who were in the field involved in really sensitive national security issues."

Would the Trump leaks qualify under that standard? What about subsequent reports that said Israel was the source of the leaked intelligence?

Reporters should be concerned. Attorney General Jeff Sessions would not rule out jailing reporters during his confirmation hearing (Obama AG Eric Holder did) and recently said the Justice Department is "going to step up our efforts" to prosecute leakers. Sessions also called prosecuting leakers a top priority of his department.

This crackdown could start soon. Conservative media outlets reported this week that three White House staffers have been identified as leaking classified information and will be fired when the president returns from his trip to the Middle East and Europe. These reports also implied that the staffers would be prosecuted.

It's hard to believe that any White House staffer, much less three, would leak classified information, especially at the same time. Is this an excuse to target the journalists who broke the stories? Is it a threat to other government officials who may talk to reporters when they disagree with the president's actions? According to recent reports, Trump asked former FBI director James Comey to consider imprisoning journalists for reporting classified information. Comey's apparent refusal may have contributed to his firing.

But that feeling is well-grounded. It would be a mistake for any administration to target journalists. America has always had a vigorous press. The republic has survived because of it, not despite it. That doesn't mean all leaks are created equal, of course. Telling a reporter that the president told Russian officials about sensitive intelligence is different than leaking hacked emails to embarrass a political candidate. The White House should recognize that. But, as the Trump administration veers out of control, it's hard to see them drawing those distinctions. The courts will have to intervene.

We've seen this already with Trump's travel ban. Federal judges have embraced the unique challenges that executive order created, tackling tough questions like the scope of the president's power over immigration and national security and how much weight a court should give to a president's own statements about what a law means - even when those statements conflict with the administration's official sanitized reasoning.

Courts should also give journalists constitutional protection from government investigations. Ten years ago, I wrote an article that criticized the approach media lawyers had taken, largely ignoring the First Amendment and arguing that reporters had a privilege from testifying, or turning over documents, under Rule 501 of the Federal Rules of Evidence. That argument is going nowhere. And, after some momentum in the early 2000s, it's unlikely that Congress would recognize a reporter's privilege now, in part because it's so hard to say who should be able to invoke it. Would it apply only to mainstream journalists? Bloggers? Tweeters?

Ironically, this argument could appeal to the originalists on the federal bench, who Trump said he admires. If the Framers did not intend to protect journalists from government investigations, how could we explain the Second Continental Congress' decision not to force the editor of the Pennsylvania Packet to reveal the anonymous author of articles that libeled some members of Congress? How could we explain the widespread opposition to the Alien and Sedition Acts?

This would correct one of the great stains on American history: the restrictions on press freedom in the 19th and 20th centuries - when, for example, Congress imprisoned a newspaper editor who refused to identify the person who had told him about a secret treaty between the U.S. and Mexico. During this time, reporters were often hailed before grand juries and threatened with jail if they didn't reveal their secrets. That did not change until the late 1950s, when the 2nd U.S. Circuit Court of Appeals recognized the possibility of a First Amendment challenge to such actions in a libel case brought by Judy Garland. Judge, later Justice Potter Stewart recognized in that case that "in the domain of indispensable First Amendment liberties, it is essential 'not to limit the protection of the right to any particular way of abridging it' .... Abridgment of such rights, even though unintended, may inevitably follow from various forms of governmental action." Garland v. Torre, 259 F.2d 545, 548 (2d Cir. 1958).

We are entering another such cycle now. After witnessing pro-speech movements during the 1960s and '70s, we have seen a proliferation of speech codes recently and universities cancelling controversial (mainly conservative) speakers. The renowned media lawyer Floyd Abrams called these developments "disgraceful."

I can see both sides. The world is becoming more interconnected and complicated. Governments have more responsibility than ever and more challenges maintaining order. Thus, most First Amendment rights should not be absolute. But if any group deserves such protection, it is the people who leak and report information about our public affairs. It is impossible to draw a line that isn't arbitrary and which won't be politicized. And, ultimately, that would hurt this country more than it helps it.