From The New York Times:
GUEST ESSAY
Trump Is Turning Journalists Into Criminals
Mr. Toobin is a contributing Opinion writer and the author of “The Pardon: The Politics of Presidential Mercy.”
When the Justice Department charged Don Lemon, the former CNN anchor, and the reporter Georgia Fort and photographer Junn Bollmann with a pair of crimes that carry, in total, the possibility of 10 years or more in prison, something shifted in President Trump’s legal campaign against journalists.
While Mr. Trump has tried for decades to keep the press in line using civil lawsuits, federal criminal law is a sharper weapon. This time the law may also be on the president’s side.
The prosecution of Mr. Lemon and the others arose amid the turmoil in Minnesota following the deaths of Renee Good and Alex Pretti this year. On Jan. 18, a group of demonstrators entered and disrupted a service at Cities Church in St. Paul, where a local Immigration and Customs Enforcement official served as a pastor. In addition to the three journalists, dozens of protesters are charged with conspiring to violate the rights of the parishioners to religious freedom.
Mr. Lemon has a show on YouTube, and Ms. Fort and Mr. Bollmann are independent journalists. Their defense is clear. “I was there as a journalist, not a protester,” Mr. Lemon told me. “I was interviewing people from all sides. We were livestreaming. It’s all right there on tape.”
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The product of journalism, for decades, has enjoyed substantial protection under the First Amendment. The courts almost never uphold prior restraints on publication or distribution of news. Thanks to Supreme Court decisions like New York Times v. Sullivan, it’s difficult for public figures who feel wronged by journalists to recover damages for libel. The courts protect journalistic outlets from potentially ruinous judgments because, in the words of that famous case from 1964, of the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”
But federal law, including the crimes for which Mr. Lemon and the other two are charged, offers no similar protections for the process of journalism. In 1972, the Supreme Court rejected a claim that the First Amendment entitled a journalist to refuse to comply with a subpoena to appear before a grand jury and be asked to identify confidential sources. In that case, Branzburg v. Hayes, the justices upheld the “obligation of reporters to respond to grand jury subpoenas as other citizens do and to answer questions relevant to an investigation into the commission of crime.”
Justice Byron White’s opinion asserted that “the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.” The Branzburg decision addressed only grand jury subpoenas, but Justice White’s opinion went further in defining the obligations of journalists in a way that’s potentially relevant to the Lemon case decades later. According to the court, “Newsmen have no constitutional right of access to the scenes of crime or disaster when the general public is excluded.” In short, the court in Branzburg said the First Amendment granted journalists no greater rights than anyone else.
In the aftermath of Branzburg, many states passed shield laws, which safeguarded journalists from being compelled to testify and reveal their sources. Prosecutors have also been generally protective of journalists when issues arise like those raised by Mr. Lemon’s case. “Reporters have often been arrested in the states while they are covering protests of various kinds,” Gabe Rottman, a lawyer at the Reporters Committee for Freedom of the Press, told me, “but the charges almost always end up being dropped. There is an understanding that the laws were not meant to police the work of journalists.”
But while it has made periodic efforts, Congress has never passed a national shield law or provided other protection for news gathering, and that’s left journalists like Mr. Lemon, Ms. Fort and Mr. Bollmann more or less at the mercy of the people who happen to be running the Justice Department at any given time.
This isn’t the first time that the federal government has shown less respect than states have for the work journalists do. During the Obama administration, the Justice Department, in an effort to identify the source of leaks, subpoenaed call logs from The Associated Press and obtained a search warrant to examine the emails of a Fox News reporter. In response to criticism at the time, Attorney General Eric Holder narrowed the circumstances in which the Justice Department would seek information from reporters. Under President Joe Biden, Attorney General Merrick Garland tightened the restrictions on prosecutors even further.
But early in the second Trump administration, the Justice Department overturned the Garland guidance; a new regulation introduced by Attorney General Pam Bondi in April 2025 eased the rules on subpoenas and search warrants for reporters.
President Trump’s hostility to journalists — whom he often calls“treasonous” and “enemies of the people” — is a long-established matter. In 2006, Mr. Trump sued his biographer Timothy O’Brien for allegedly understating his wealth; the case was dismissed. In later years, he filed more defamation cases, including more than one against The Times, but he’s never won one in court. Instead, since being re-elected, he’s used his powers as president to extort multimillion-dollar settlements from ABCand CBS’s parent company for cases that would never have stood up in court.
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