By William H. Freivogel
In the past half century the most reliable checks on presidential power have been a watchdog press and independent judiciary. In his first weeks in office, President Donald Trump has attacked the legitimacy of both institutions with a fusillade of insults, misstatements and lies. They were among the 133 lies and misstatements that the Washington Post counted over the president’s first 34 days.
Trump labeled judges who blocked his immigration travel ban a “so-called judge,” “ridiculous,” “disgraceful” and deserving “blame…if something happens.” White House policy adviser Stephen Miller went so far as to say “the powers of the president to protect our country…will not be questioned.”
Meanwhile, in a remarkable feat of jujutsu, Trump captured the term “fake news” and wielded it as a sword against legitimate news organizations. After having been accused of benefiting from fake news in the run-up to the 2016 election, Trump turned the tables and expropriated the slogan to attack news he doesn’t like.
And it’s becoming a popular propaganda technique worldwide. Vladimir Putin has claimed reports of Russian hacking in the 2016 U.S. election are fake news, even though they are substantiated by Western intelligence. And Syria’s President Bashar Assad has claimed Amnesty International’s reports of mass hangings are also “fake news.”
Even as Trump branded legitimate news as fake, his White House issued press credentials to the likes of Gateway Pundit Jim Host, a St. Louisan who regularly reports false news and conspiracy theories.
Trump himself seems to believe the conspiracy theories. In the most extraordinary and unverified claim of his young presidency, Trump tweeted on March 4 that former President Obama tapped the phones at Trump Tower as part of an Obama plot to undermine his administration. Trump apparently relied on radio host Mark Levin, Rush Limbaugh and Breitbart for his information. Had he instead checked with his own FBI director, James Comey, he would have been told his tweet was untrue.
After the tweet, newly credentialed Gateway Pundit headlined: “Incompetent AND Criminal: Obama’s Wiretapping of President Trump Icing on the Cake of Worst President Ever.” Breitbart called the “scandal” “DeepStateGate,” a reference to the conspiracy theory that a shadow government of unelected officials and intelligence officers controls the government.
Trump capped his first month in office calling the mainstream media the “enemies of the people” — by which he means his enemies.
The Supreme Court viewed the press’ role in the opposite fashion in the 1971 Pentagon Papers case when it laid out the importance of the press as a check on presidential power in the nuclear age. In siding with the New York Times’ publication of the secret history of the Vietnam War, the court said an enlightened citizenry is a important check on presidential power in foreign affairs and there couldn’t be an enlightened citizenry without a press that is “alert, aware and free.”
No president before Trump has so personally and quickly attacked the media or so rapidly created a credibility gap through false public statements. The closest historical analogy is President Richard M. Nixon with his enemies list, vice presidential attack dog and illegal taps of Washington reporters. Nixon’s presidency didn’t turn out well.
Meanwhile, the branch of government the Founding Fathers envisioned as the main check on the president — Congress — is behaving like a lapdog. The Republican-controlled Congress has done little to push back, excited that a unified Republican government can accomplish major parts of the GOP legislative agenda.
With a compliant Congress, the Trump attacks on the two remaining checks on his power make sense: Target the two institutions that can limit your power. But what is the end game envisioned by Trump and the architect of this strategy, Stephen Bannon, the former Breitbart editor who speaks of a “fight a day” with the press?
In modern history, presidents fighting with the press and judiciary have failed.
The judiciary and press gain power
After World War II, both the federal courts and the press asserted new power. Chief Justice Earl Warren’s Supreme Court took the lead in recognizing broader civil rights and civil liberties protections. At the same time, the Golden Age of investigative journalism fortified the media’s role as watchdogs guarding against government abuse.
The pinnacle of this Golden Age was Watergate when Bob Woodward and Carl Bernstein of the Washington Post reported on the use of Nixon campaign money to fund illegal acts, such as the burglary of the Democratic National Committee headquarters at the Watergate hotel.
Those stories, like most of the journalistic challenges to presidential power, were based on unnamed sources. Deep Throat, the most famous confidential source in history, helped Woodward and Bernstein bring down Nixon.
Confidential sources have been essential to the most consequential disclosures about Trump as well.
Vice President Mike Pence reportedly learned that National Security Advisor Michael Flynn had lied to him about contacts with Russian Ambassador Sergey Kislyak by reading about the contacts in a Washington Post story. Trump had known about the contacts for days but apparently hadn’t told his vice president before the Post’s story based on unnamed sources.
Similarly, the Washington Post’s sourced account about Attorney General Jeff Sessions meeting with Kislyak, despite Sessions’ contrary testimony, led less than 24 hours later to Sessions’ recusal from the investigation of the Russian meddling in the election.
Trump complains about the leak of secret information by unnamed sources, and with some justification. Leaking top secret information is a crime.
But the publication of the leaks is not a crime. And it took the Washington Post stories with their unnamed sources to force Flynn’s resignation and Sessions’ recusal.
Media ethics codes advise journalists to minimize the use of confidential sources. The reader has no way of knowing whether to believe a nameless, faceless leakers. But the reality of Washington is that big stories checking presidential power almost always rely on confidential sources. People leaking top secret information would get fired and jailed if identified.
Good source stories and bad ones
Not all confidential source stories are created equal. Some serve the public good; some do not.
The leaks of the top-secret Pentagon Papers and of Watergate investigative information revealed serious abuses of presidential power. Edward Snowden’s disclosure that the NSA was collecting the metadata from all Americans’ phone calls got him charged with Espionage, but also led to reforms protecting privacy.
By contrast, the 2003 leak by Vice President Dick Cheney’s office of Valerie Plame’s identity as a CIA agent seemed intended to punish Plame’s husband, Ambassador Joseph C. Wilson. Wilson had blown the whistle on President Bush’s false claim about weapons of mass destruction in Iraq. Bush claimed in the 2003 State of the Union speech that Saddam had bought yellow cake uranium for a bomb from Niger, even though Wilson himself had investigated for the CIA and disproved the claim.
It was an upside-down leak with the people in power leaking top-secret information to punish the whistleblower — Ambassador Wilson. Usually, however, it’s the other way around, with whistleblowers leaking information about the abuse of power by top officials.
Julian Assange and WikiLeaks also performed a disservice to American democracy by serving as the apparent delivery system for Putin’s assault on the 2016 presidential election. Think of it: WikiLeaks and then the mainstream media became accomplices of Russia’s successful attempt to destabilize the election of the greatest democracy in the world.
One ethics issue most journalists have not confronted is whether reputable news organizations should refuse to print the bad leaks – the ones where high officials are leaking to damage whistleblowers, such as Wilson, or where WikiLeaks is weaponized to deliver hacks from Russia’s FSB.
The answer is tricky. Almost all leakers have mixed motives. Woodward and Bernstein claimed for years that Deep Throat did not have an ax to grind, but Deputy Director Mark Felt was mad at Nixon for passing him over to head the FBI. And if news organizations had refused to print the hacked DNC-Clinton foundation emails, they would have looked as though they were protecting Hillary Clinton.
News organizations should remember, however, that The New York Times’ demand for a leak investigation of the Plame outing boomeranged into Times reporter Judith Miller spending 85 days in jail for protecting her source in the vice president’s office.
Lessons for journalists
The past half century provides lessons for journalists performing the press’s constitutional duty to check President Trump’s power:
— When the press does not check presidential abuses of power, a president with a Congress of his own party will be unimpeded in his exercise of power. The beginning of the Vietnam War and the Iraq war are examples.
— The press’ use of confidential sources was essential to every major case where the press has checked presidential power — Pentagon Papers, Watergate, CIA black prisons, NSA wiretaps during the Bush administration and NSA data collection during the Obama administration.
— The use of confidential sources can be abused when used to support the presidential power to wage war as with Judith Miller, or to punish a whistleblower as with Valerie Plame or to harm the United States as with the weaponization of WikiLeaks as an instrument of Russian intelligence.
— Old-fashioned investigative reporting – such as Watergate, the Pentagon Papers, the black CIA prisons and the NSA wiretapping — is essential to the press’ check on presidential power. Stories moored to facts are more persuasive than flights of advocacy reporting.
— The press’s role of finding the facts and getting as close as possible to the truth is fundamental to the functioning of democracy because an unenlightened citizenry can enable bad government just as surely as an enlightened citizenry is essential to good government.
Today’s press is built on the Enlightenment assumption that free speech and a free press can find the facts that a democracy needs to arrive at governing truths. That still is possible in these days of the Trump administration when propaganda spreads across the political spectrum and across media platforms. But it requires hard work by journalists and sophistication from citizens.
Justice Louis Brandeis, one of the great justices of the 20th century, famously expressed his confidence that free expression would help democracy find truth: “Those who won our independence believed,” he wrote, “that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth . . . that the greatest menace to freedom is an inert people; that public discussion is a political duty, and that this should be a fundamental principle of the American government.”