Under Project 2025, Journalists and Sources Would Face Spying and Prosecution
The last two decades have been an abysmal time for the right to press freedom in the U.S. Successive administrations — from both parties — have normalized using the Espionage Act to prosecute whistleblowers and journalists’ sources. In June, the Department of Justice (DOJ) secured a conviction of WikiLeaks founder Julian Assange under the Espionage Act. In doing so they achieved something once thought unthinkable: the successful criminalization of routine newsgathering activities long believed to be protected by the First Amendment. This criminalization of journalism has unsurprisingly been accompanied by increased surveillance of journalists. And if right-wing think tank the Heritage Foundation gets its way, surveilling journalists and prosecuting their sources is about to get a lot easier.
In Project 2025 — an outline for how a Republican president should govern if they win this year’s election — the Heritage Foundation calls on the Department of Justice to “use all of the tools at its disposal to investigate leaks.” Though Donald Trump has sought to distance himself publicly from Project 2025 in recent weeks, he has close ties to at least 140 of the people who helped to craft it, and had previously praised the Heritage Foundation’s work on Project 2025, raising fears that he may seek to implement many of its proposals if elected.
To achieve Project 2025’s stated end of making the Department of Justice use “all of the tools at its disposal” against whistleblowing, the Heritage Foundation demands the repeal of guidelines that limit when law enforcement can access journalists’ communications. They also want to “prioritize hiring additional counterintelligence and security personnel” to assist in ferreting out journalists’ sources, so the sources can be prosecuted.
The Heritage Foundation justifies this crackdown on journalists and whistleblowers by saying intelligence “personnel have sufficient access to legitimate whistleblower claims under protections provided by Inspectors General and Congress.” But as Mike German, an FBI whistleblower and fellow at the Brennan Center for Justice’s Liberty & National Security Program, told me, “Whistleblower protections for FBI and intelligence agency employees are inadequate and rarely prevent reprisals, which is why people often decide to make disclosures about government waste, fraud and abuse to the media. It’s often the only effective path to alert the public about illegal government activities.”
The DOJ News Media Policy
On October 26, 2022, Attorney General Merrick Garland implemented a revised policy curtailing when the Department of Justice could obtain a journalists communications records or compel them to testify. The move came in response to revelations that the Trump administration had sought email records for four reporters at The New York Times, and successfully seized phone records for three reporters at The Washington Post, and phone and email records from a CNN reporter. All of these seizures were part of investigations into leaks of classified information. Initially, the Biden administration continued the Trump administration’s legal battle to obtain the Times reporters’ emails and placed the paper under a gag order to prevent them from disclosing the legal battle, but Biden’s DOJ later reversed course and Garland instituted a new policy blocking such seizures.
The government doesn’t need the contents of a journalist’s communications, just records of who they contacted, to do damage. For six years, the Obama administration tried to compel James Risen, then at The New York Times, to name the source of his revelations about a botched CIA covert action against Iran. Attorney General Eric Holder went so far as to threaten to jail Risen if he didn’t out his source to prosecutors. Embarrassed by widespread outrage, Holder backed down in 2014. But the Justice Department did go forward with prosecuting the accused source, Jeffrey Sterling. (Full disclosure: Jeffrey Sterling is a member of Defending Rights & Dissent’s board of directors.)
The government’s case against Sterling consisted mostly of the fact that phone records showed Sterling had spoken to Risen. Sterling had plenty of reason to talk to Risen other than to expose classified covert actions. Sterling had sued the CIA for racial discrimination and Risen had covered the case. Sterling asserted his innocence and took the case to trial. But the jury convicted Sterling on the basis of phone records alone and sentenced him to three and a half years in prison. Reporters Without Borers condemned the conviction, stating, “Sterling is now in jail for merely talking to a journalist regularly.”
The Heritage Foundation demands the repeal of guidelines that limit when law enforcement can access journalists’ communications.
It is exactly this type of prosecution that the authors of Project 2025 hope to facilitate. While such prosecutions are aided by seizing journalists’ records, they ultimately are made possible by the Espionage Act and the treatment of whistleblowers as counterintelligence threats.
Counterintelligence and the Espionage Act
In Project 2025, the Heritage Foundation doesn’t only call for rolling back protections against spying on journalists. They want to expand the counterintelligence apparatus so there are more agents working on identifying and prosecuting journalists’ sources.
At first blush, tasking counterintelligence — which is traditionally focused on enemy foreign agents — with identifying journalists’ sources may seem strange. Unfortunately, it already is the norm. Because media leaks of “national defense information” are governed by the antiquated and undemocratic Espionage Act, the FBI’s counterintelligence division has jurisdiction for investigating media leaks. In fact, in the FBI’s website description of its counterintelligence program, it lists protecting “the secrets of the U.S. Intelligence Community” above countering foreign spies or stopping the proliferation of weapons of mass destruction on its list of priorities. The list is not ranked, but its order certainly provides a window into the insight of FBI priorities.
Investigating journalists to out their sources is fundamentally undemocratic. But using the FBI’s counterintelligence program to track journalism only compounds the problem. The FBI has dual national security and law enforcement functions. When it comes to national security, the protections for civil liberties are lesser and the surveillance powers more expansive.
As German told Truthout, “Using counterintelligence authorities to investigate this reporting is an affront to the First Amendment and democratic principles. American journalists are not spies, and the public has a right to know when our law enforcement and intelligence agencies are operating illegally or ineffectively. Limits on the government’s power to investigate journalists need to be strengthened, not weakened.”
If Trump wins the presidency and implements the proposals outlined in Project 2025, he and the intelligence community will likely roll back restrictions regarding when they can spy on journalists — and expand one of the most dangerous aspects of the intelligence community so they can increase surveillance of the media.
Resisting the Attacks on Press Freedom
The best way to resist Project 2025’s attacks on press freedom is for Congress to take affirmative steps to protect the free press. The House of Representatives has unanimously passed the Protect Reporters from Exploitative State Spying (PRESS) Act, but it remains stalled in the Senate. Under the PRESS Act, journalists would be protected from revealing their sources and their communications could not be subpoenaed in order to find their source. While a Trump-appointed attorney general can reverse a Justice Department policy with the stroke of a pen, a law passed by Congress can only be repealed by Congress.
“Using counterintelligence authorities to investigate this reporting is an affront to the First Amendment and democratic principles.”
Still, passing the PRESS Act isn’t enough. Congress needs to reform the Espionage Act so it does not apply to journalists or government officials who alert the media about real abuses of power. Taking away the government’s ability to arrest whistleblowers removes one of the main legal justifications for surveilling journalists to hunt their sources. Congress must limit the broad national security powers of the FBI and other agencies, making it clear that when First Amendment rights are at stake, surveillance is not permissible absent suspicion of a crime — and that journalism is not a crime.
Administrations from both parties have abused the Espionage Act to set a terrible precedent that journalists’ sources are fair game for prosecution. In doing so, they’ve also expanded the surveillance of journalists. The Biden administration deserves particular scorn for continuing two Espionage Act prosecutions initiated during the Trump years, those of drone whistleblower Daniel Hale and journalist Julian Assange.
Garland’s modest restrictions are nonetheless vital to protect. There are many in the intelligence community and their bipartisan enablers who would love to see them lifted. And while these powers are dangerous no matter who the president is, the dangers are heightened under a potential Trump administration. Trump’s personal animus to the press is well known, and in a second term he appears poised to escalate legal attacks on the media. Project 2025’s own attacks on press freedom provide one blueprint to do so.