The importance of the press to governmental accountability in our constitutional democracy is reflected in the First Amendment to the Constitution, which protects “freedom … of the press.” The Constitution protects the press “so that it could bare the secrets of government and inform the people,” Justice Hugo Black wrote in the Pentagon Papers case in 1971. “Only a free and unrestrained press can effectively expose deception in government,” he added. [137] The structure of the press has changed radically since 1789 and even since 1971, as we shall see. But the press continues to serve this vital role in the U.S. constitutional scheme.
All politicians are exquisitely attuned to public opinion and have no choice but to worry about their press. That is why they court reporters, do what they can to “manage” or shape news stories and commentaries, and often complain about the results. The higher the office, the greater the resources available for these purposes, and the more time and money is spent on the problem. With the rise of new media and the twenty-four-hour news cycle, the pressure to monitor and control for this variable in the competition for public favor has grown much more intense.
The president is in the most challenging position. The press presents more than an obstacle, or asset, to be shaped in the service of reelection. It also impacts the president’s capacity to manage public opinion in support of a governing program. What Jeffrey Tulis has termed the “rhetorical presidency” makes it incumbent on the president “to promote policy initiatives nationwide, and to inspirit the population.” [138] Presidents appreciate that at this stage in the institutional evolution of the office, a president must provide “active and continuous presidential leadership of popular opinion.” [139] The press, “as an autonomous institution” devoted to scrutinizing and critiquing what presidents say, is “as much a rival and impediment to as facilitator of presidential initiatives.” [140] Good press aids the governing objectives of a president. Bad press undermines them.
Tension in the relationship between the president and the press is a durable feature of American politics. Trump is not the first president to see the press as more “enemy” than rival: out to get him, refusing to cover him (or his opposition) fairly, and committed to his political destruction. But in both his rhetoric and the centrality of press animus to his political program, Trump exceeds all predecessors in ways that invite reconsideration of the law and norms that govern White House relations with the many and varied institutions that seek to cover it.
Background
For approximately the first two-thirds of the last century, presidents sought to sway the press in their favor, or temper critical coverage, by capitalizing on journalistic rules of the road that are very different from those that apply today. [141] To the extent that the White House press corps in particular defined its relationship with a president, it was not, at heart, adversarial. Reporters did not generally view it as their mission to keep their distance from the president and White House officials, or to cast a sharply critical eye on public postures by looking behind them for inconsistencies or undisclosed motives. Reporters enjoyed generally clubby relationships with politicians as “insiders.” What a congressional reporter observed in 1956 was also true of the White House press corps: The job was “a little like being a war correspondent; you really become a part of the outfit you are covering.” [142]
In this milieu, journalists tended to organize stories around what a president professed that he was intending or doing. A statement that the president made, or a press release through the White House, received attention as “news.” The president maintained significant control of his message. And some facts about politicians’ conduct, such as their personal life, were off-limits for public reporting.
The 1960s and early 1970s brought shocks to the nation that awakened the press to its too-trusting posture toward the White House. The awakening began with the Eisenhower administration’s many lies to the press about the May 1960 downing of the U-2 spy plane over the Soviet Union, and John F. Kennedy’s acknowledgment to a New York Times editor that if the paper had not caved to Kennedy’s pressure to tone down its pre–Bay of Pigs reporting, the country might have been “saved ... from a colossal mistake.” [143]
And then it became clear that the course of the war in Vietnam did not comport with several administrations’ claims about it. In 1971, the New York Times and the Washington Post published the Pentagon Papers, a classified Defense Department study that suggested that the Kennedy and Johnson administrations had concealed from the public material facts about the origins of the conflict, the policy justification for it, and the failure of U.S. military strategy. The narrative of disingenuous presidential advocacy was bolstered by the Nixon administration’s failed lawsuit to enjoin the publication of the Pentagon Papers. This was the first executive action to seek by judicial decree a “prior restraint” on news organizations since President John Adams’s enforcement in 1798 of the Alien and Sedition Acts. [144] The Supreme Court sided with the press, and the lawsuit quickly came to be seen as an attempted cover-up of the cover-up.
As one of us has written previously, American journalists emerged from the episode “with a permanently skeptical attitude about whether the government was telling the truth, a realization of its power to defy the government even on matters of war, and a romantic self-conception of its role in American democracy.” [145] All of these beliefs were strengthened after a raft of criminal lies—by the president, the attorney general, and many other senior officials—were uncovered during the Watergate scandal. Aggressive and even heroic reporting on Watergate, especially by Carl Bernstein and Bob Woodward, was widely seen to have been the catalyst for other government actors—especially Congress and the courts—to perform their constitutional functions.
These events occurred against a background of other structural forces that had since the turn of the century been moving the national press to reconceive its mission. For much of American history, journalists did not draw sharp lines between fact and opinion, or between news and entertainment. Newspapers pitched to readerships interested in perspectives on politics fully compatible with their own. Papers tended to align reliably with political parties and partisan outlooks. [146] This changed steadily throughout the twentieth century. By the 1970s, the national press had adopted a professional standard that aimed to penetrate the fog of government claims and provide readers with analysis of the reality behind them. This standard in part reflected the economic opportunities open to the profession. Attracting a national customer base required appealing to various viewpoints, and “objectivity” allowed news organizations to break out from the limitations that a one-sided stance imposed on potential growth. Consistent with this model, journalists began to self-identify as independent craftsmen and craftswomen schooled in the discipline of a distinctive occupational pursuit that included obtaining and relaying the “facts.”
By the early 1970s, this professional self-conception had dovetailed with the awakening driven by manifold government misrepresentations to transform the press into an institution with a sharply adversarial stance toward the presidency. The trend in the 1960s was well summed up by George Reedy, Lyndon Johnson’s White House press secretary, who declared that “it is inevitable that newspapermen eventually become the ‘enemy.’” [147] In just fifteen years, journalists had gone from “war correspondents” who were part of the administration “outfit” into the enemy itself.
The growing antagonism between the press and the presidency was accompanied by a generally leftward drift in elite journalism during this period. [148] The sociologist Daniel Patrick Moynihan, an aide to President Nixon, had this in mind when he wrote in 1971 that “the national press … very much reflects the judgment of owners and editors and reporters as to what is good and bad about the country and what can be done to make things better.” [149] Almost fifty years later, the deputy general counsel of the New York Times , David McCraw, could write in similar terms about the outlook of the reporting corps at the nation’s flagship news entity:
They believe, all other things being equal, that the little guy is getting screwed, economically, politically, and in every other way. The reportorial default is to think that most regulations are good, the rich and connected don’t need more money or more power, and most social policies in the long run hurt the poor, the sick, and the disadvantaged[.] [150]
McCraw describes these as “the most basic prejudices of the profession.” [151] He did not mean reporters holding these “prejudices” consider themselves partisans. At the same time, the perspective he attributes to journalists as a class clearly maps more onto “liberal” rather than “conservative” viewpoints. As Daniel Okrent, formerly the public editor or ombudsman of the Times , wrote as the answer to the question “Is the New York Times a Liberal Newspaper?”: “Of course it is.” [152]
While every president since at least the 1960s has felt the sharp pinch of adversarial journalism, and while all have had difficult relationships with the press, the leftward tilt in the values of elite journalism has meant that Republicans have long been less trustful of the media than Democrats. Unsurprisingly, this asymmetry has meant that the Republican Party more than the Democratic Party has programmatically aimed to discredit the media, including at the presidential level. Before Trump, of no president was this more true than Richard Nixon.
When Nixon became president in 1969, his conflicts with the press were already notorious. Nixon understood the press animus against him to have both a political and a personal element. The press held “an ideological bias against nonliberals combined with a personal bias against him,” according to Nixon’s close aide William Safire. [153] And Nixon, in turn, possessed a pure “hatred of the press” that “carried him beyond the bounds of good sense.” [154] Nixon’s open contempt for the press can obscure the institutional dimension of the conflict.
The Nixon White House perceived the newly adversarial press as competing for the attention of the American public and attempting to shape their judgments of administration policies and priorities. It also believed, as senior aide Patrick Buchanan argued, that the president had “the right of untrammeled communication with the American people.” [155] Or as Vice President Spiro Agnew declared:
[T]he President of the United States has a right to communicate directly with the people who elected him, and the people of this country have the right to make up their own minds and form their own opinions about a Presidential address without having a President’s words and thoughts characterized through the prejudices of hostile critics before they can even be digested. [156]
According to historian David Greenberg, “Getting a fair hearing from the public, Nixon believed, required discrediting the media.” [157]
This attitude led Nixon to downgrade and reconceptualize the press secretary’s role and subsume it under a major new communications apparatus run by a director of communications who was charged with managing the dissemination of the president’s message. Prior administrations had tended to draw on the ranks of former reporters for press secretaries. Veterans of the trade knew how it was practiced and understood what “care and feeding” journalists might require for a productive relationship. Ronald Ziegler, the president’s choice for the job, came to the White House with a very different experience—as a “corporate public relations man,” recruited from the world of commercial advertising. [158] His job was to control tightly the administration’s projection of program and image. “Look, I know about the way the media work,” he declared. “I bought advertising space for years.” [159]
By the end of Nixon’s first term, the institutional press had concluded that the president had begun a profoundly unhealthy change in the relations of his government and the news media. The National Press Club in Washington, D.C., commissioned a study, published in 1973, which concluded that the president had instituted a “policy of massive official hostility” to the press. [160] The administration did not merely work for the best, most favorable coverage it could get. It aimed to “diminish whatever impact [journalists’] reporting might have on the public’s insight” into this presidency and to “undermine the integrity of the national press corps in the public’s eye.” It combined “this startling directness and persistence” of attack with a steadily more severe restriction of interaction with the press. Press conferences dwindled in number to the fewest since the Hoover presidency. It was “the most ‘closed’ Administration in memory,” and the result was a “deep estrangement” of government and media.
The press also complained that the administration had embarked on a campaign of intimidation. Vice President Agnew extended his critique of bias to raise the question of “the trend toward the monopolization of the great public information vehicles and the concentration of more and more power in fewer and fewer hands.” [161] Buchanan publicly raised the possibility that the media faced antitrust action. And acting at White House direction, Nixon’s chairman of the Federal Communications Commission (FCC), the agency empowered to grant broadcast licenses, called the heads of networks to ask for transcripts of on-air press commentary that followed a presidential address. It appeared that he was trying to send a message about the “instant analysis” that so infuriated the president and his aides, and that the vice president had argued interfered with Nixon’s right to communicate directly with the American people. [162] The director of communications directed his staff to contact local stations in advance of those speeches to inquire into their plans for its coverage and post-address commentary.
The administration also began to plot more insidious acts of intimidation. In an internal memorandum, senior aide Jeb Magruder recommended a range of actions to subdue the antagonistic media, including monitoring through the FCC and the use of the Internal Revenue Service (IRS) to “look into the various organizations that we are most concerned about.” [163] Later events suggested that these steps were not merely notional. The administration wiretapped and tailed reporters, and brought an antitrust suit targeted at the networks’ lucrative entertainment programming practices. Allies of the president organized challenges to licenses held by local stations owned by the Washington Post .
And then there was Nixon’s enraged reaction to CBS reporter Daniel Schorr’s critical news coverage. Schorr was placed on Nixon’s “Enemies’ List,” and Nixon demanded “an FBI check on that bastard. And no stalling this time.” [164] The FBI interviewed Schorr’s friends and colleagues widely, which ensured that their activities came to light. The administration denied any impropriety. It claimed improbably—and falsely—that Schorr was under consideration for a senior-level administration appointment within the field of environmental policy. Senator Sam Ervin of North Carolina, later the chairman of the Senate Watergate investigation, denounced the administration for its “efforts of wholesale intimidation of the press and broadcast media.” [165]
These strategies did not turn out well for Nixon. The press did not let up on him, and its role in the Watergate scandal, resulting in the only presidential resignation in U.S. history, became the stuff of legend. But the fundamental transformation of the White House–press relationship did not reverse itself after Nixon departed from the scene. Under subsequent administrations, the relationship between the White House and the press remained tense and competitive, and, under the stress of scandal and events, passed through periods of outright hostility and deep mutual distrust. Subsequent administrations also built up ever-more sophisticated operations to seek to manipulate or circumvent the institutional press in order to get the desired message out to the American people.
The conflict as it has raged in recent times has taken an even darker turn as the technology and economics of the industry have changed dramatically. The age of digital media has taken a dramatic toll on the traditional newsroom. Newspapers in markets across the country have shut their doors, and journalists by the thousands have lost their jobs, as the once well-established, dominant news organizations lose customers to a plethora of new sources of information on the internet.
In addition, social media now determine how much of an audience new media can hope to attract, which means that with today’s polarized politics, “most people prefer news that reinforces their existing ideological views.” [166] As Ezra Klein has observed, “[T]he strategy of the digital business model is to be the most appealing thing to some people.” [167] Because modern media offer a plethora of choices, those who are less interested, or uninterested, in politics can avoid political coverage or commentary, with the result that news media in search of an audience are “biased toward and dependent on the fraction of the country with the most intense political identities” and interests. The “opinionated press,” as Klein calls it, tends to be less concerned with sharp distinctions between fact and opinion. It responds to the more segmented market in which consumers pick the news product that caters to their ideological or political preferences. And it measures success largely by the metrics of social media: the “clicks” their stories generate and the circulation of reported material on Twitter.
The sharply fragmented and increasingly political news media, on the left and the right, exacerbate the problem of White House–press relations with the “opposite-party” strand of the media. A polarized politics means that some media outlets are trusted and others dismissed, if not loathed. Prominent politicians may accuse the media organizations of pure partisan political bias, or of reflecting the “corruption of corporate elites” that own cable and print press outlets. [168]
Presidents contending with this press environment have built on Nixon’s innovations and now routinely build huge communications operations designed to push their messages through the cyber-clutter and to work around press narratives that might frustrate the achievement of their policy and political objectives. To this end, the White Houses since 2001 have themselves made intensive use of the internet and social media to communicate directly, daily, with the public. During the Bush administration, the White House began to livestream coverage of presidential events, established “Ask the White House” live web chats with White House and Cabinet officials, and began to use nascent social media. It was also the first administration to grant a mainstream blogger press credentials. The Obama administration built on these trends and widely deployed YouTube, Facebook, Twitter, and Flickr to gets its message out. By 2015, the Washington Post characterized the Obama White House as “its own media production company, one that can sometimes look like a state-run news distribution service.” [169] The administration sought to “dazzle[] and draw[]” citizens to Obama’s message by using familiar social media technologies, [170] and used “micro-targeting” to reach its intended audience “without the filter of the traditional media.” [171]
The Trump Era
President Trump has never concealed his disdain for the press, and his public rhetoric tends by and large to be of the kind that Nixon avoided except in private conversations that, unhappily for him, were often captured by the White House taping system. No president has ever unleashed anything like Trump’s stream of invective against the press. Through his favorite medium of Twitter, often paired with Facebook posts, Trump has expressed his views of the media in terms like “scum,” “slime,” and “garbage,” and when he chose to build out the point, he also referred to journalists as “among the most dishonest human beings on earth” and the “enemy of the people.” He has tweeted crude, digitally manufactured images of himself administering a physical beating to particular targets, like CNN. He has pushed the moniker of “fake news” so that it appears almost uniquely his own.
Like Nixon, and to a lesser degree several other presidents, Trump believes that he is the victim of coverage crafted by reporters at major news organizations—the “mainstream media”—who oppose his policies and who have dug in from the day of his election to portray him and his administration in the worst possible light. He associates this opposition with a broader and unprecedented establishment assault on his candidacy and his presidency. The press is an accomplice in this sinister series of machinations. The “deep state,” the Democrats, “liberals,” and “fake news” are arrayed against him in close collaboration. More recently, Trump has characterized even Fox News and the Drudge Report in similar terms.
The establishment or mainstream press for its part determined early on that the Trump administration could not be covered like any other. This president, many news organizations concluded, is a serial liar. Refusing a reportage of “equivalency,” in which reporters straightforwardly report both a Trump claim and an opposition or expert response, these media outlets have adopted a policy of calling him out explicitly for falsehoods. There developed within the elite media an “overwhelming consensus … that the press should not normalize Trump—that the conventions of journalism must be altered.” [172] Beginning in the first year of his presidency, Trump received unprecedentedly negative coverage.
It is hard to sort out in an objective way when the mainstream press’s strong reaction to Trump was appropriate and when, provoked by a tweet or an action, the coverage broke with standards for impartial or “objective” coverage. But some journalists undoubtedly feed Trump’s attacks on media bias when they announce their personal political views in regular appearances on Twitter and cable shows. This practice—by journalists on the left and the right—tends to blur the lines between personal and professional norms, especially since journalists often criticize or praise presidents and administrations in sharper ways through these outlets than in their reporting. The practice invariably raises a legitimate question of perverse personal incentives. As noted earlier, influence is often measured in the number of Twitter followers, and cable news appearances do not often reward measured analysis. In the Trump era, the practice has intensified, no doubt in part a response to Trump’s prods and provocations.
Whatever the reasons, these practices tend to undermine journalists’ credibility before oppositional audiences, and when engaged in by journalists on the left they tend to confirm some of the president’s attacks on the press’s bias. The overall effect is to further fragment journalistic outlets into sharp and opinionated right and left publications.
The conflict between Trump and the press is also exacerbated by Trump’s populist tendencies. Trump portrays himself as the “voice” of the people in opposition to a rigged system that includes the mainstream media. The press that frustrated a populist president’s quest for seamless, unobstructed messaging to the public is not only, as in all presidencies, an institutional rival. It is also a publicly avowed political enemy and target, a pillar of the system Trump had been elected to tear down.
And of course the conflict has been exacerbated by technological changes. Trump used social media, especially Twitter, like none of his predecessors. It is his prime instrument for creating and managing his press and for attacking news organizations and journalists. Trump is open about Twitter’s and other social media platforms’ unique functions in circumventing the established media organizations. At a White House “summit” on social media, before assembled conservative bloggers and tweeters, Trump championed the cause of “challenging the media gatekeepers and the corporate censors to bring the facts straight to the American people. … [Y]ou communicate directly with our citizens without having to go through the fake-news filter.” And he was frank about his admiration for the kind of material that could be successfully routed around the filter: “The crap you think of is unbelievable.” [173]
Trump has also adopted the position, in litigation supported by the Department of Justice, that his Twitter account, @realDonaldTrump, is personal, not official. Twitter as a presidential weapon in the war against the press is very much in the foreground of the case. In a stipulation the administration filed in that case, the president acknowledged that his Twitter account enables him to “challenge media organizations whose coverage of his Administration he believes to be unfair.” On this view, because his Twitter account is not a public forum, Trump is entitled to block access to the account. In addition to having the capacity to reach millions of Americans with a tweet whenever, and on whatever topic he chooses, Trump is arguing for the right to police the space and keep out unwanted responses.
Trump has so far lost that fight in court. A panel of the U.S. Court of Appeals for the Second Circuit found that “the First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise-open online dialogue because they expressed views with which the official disagrees.” [174] Trump strikingly deemed the issue one of “exceptional importance” in a rehearing petition that was ultimately denied. [175]
The significance of Trump’s ardent commitment to social media as a primary medium of direct communication with the public cannot be understood apart from his attacks on the credibility of professional news organizations and the steps he has taken to block their channels of more traditional reporting. He is not only putting out his positions in the form, and with the timing, he prefers. All presidents have strived to do that. But Trump has coupled attempted press circumvention with sharply reduced White House briefings and presidential news conferences, and with systematic attacks on the credibility of the mainstream news media.
Like Nixon, Trump has taken a dim view of regular White House–press interactions in the West Wing briefing room. By tweet he informed his press secretary at the time, Sarah Huckabee Sanders, that she should not “bother” with briefings because the “press covers her so rudely & inaccurately.” [176] The White House response was to cut down the number of these events. It had only one briefing in each of the months of September, November, and December 2018. And it did not have a traditional press briefing by the White House press secretary between March 2019 and April 2020, when Kayleigh McEnany became press secretary. McEnany held regular press conferences but adopted an unprecedentedly hostile posture toward her press audience.
The Trump White House adopted other strategies to limit press access. In May 2019, it established new rules for the issuance of press passes, arguing that the changes were justified by security concerns. The objective was to cut down on the number of “hard passes” issued to reporters to authorize ongoing access to the White House press space. It announced that these passes were subject to renewal only if reporters had entered White House grounds for at least 50 percent of the time in the preceding 180 days. Reporters would otherwise be required to apply for passes on a daily, weekly, or six-month basis. Exceptions would be made in “special circumstances,” such as maternity leave. [177] These changes may seem to be of modest significance in light of the Trump administration’s sharp reduction in daily briefings and news conferences. But they served the White House’s apparent purpose in signaling the distance it wished to keep from the press and the tighter control it was prepared to exercise over access in the name of tighter “security.”
The fight with the press corps en masse played out in confrontations with individual reporters as well and led to controversy over the circumstances in which the White House would revoke the credentials of reporters deemed too relentlessly critical. Trump has expressed his fury over the coverage of CNN, and one of its White House correspondents, Jim Acosta, has jousted combatively with the president in press conferences. In one such instance, the president, assailing Acosta as a “rude, terrible person,” demanded that he “put down the mic” and yield the floor. [178] Acosta refused and seemed to brush away an aide who sought his microphone. The White House subsequently revoked his pass, contending that his actions threatened the conduct of an “orderly and fair press conference.” [179]
CNN sued, and a court ordered the restoration of the credentials on the ground that the applicable regulations for the issuance of passes required notice to CNN, an opportunity for a response, and a written decision before they could be revoked. Acosta got his pass back. But the court noted that under the governing precedent, the White House could restrict access to the public, affording some or none at all, and the press had no greater right than anyone else. On what it termed a “highly, highly unusual set of facts,” the court ruled only that with access having been granted , the administration was subject to procedural requirements in revoking a pass. [180] This access supported a “First Amendment liberty interest protected by a due process right [under the Fifth Amendment].” [181] The White House then revised its press pass rules to meet the requirement for rule-based transparency. Reporters could ask one question; the president had the discretion to allow for a follow-up. If he declined to invite or allow one, the reporter would be required to surrender the microphone or face the suspension of his or her pass.
Trump also dislikes his coverage in the Washington Post , owned by Amazon founder and chief executive Jeff Bezos. Trump took up a line of attack focused on the rates the U.S. Postal Service charged Amazon for the delivery of the company’s orders—rates that Trump alleged to be disgracefully low. It then emerged that the president put pressure on the Postal Service to double the rates, and by executive order he established a task force to examine this and other strains on the Postal Service’s finances. In spring 2018, the president’s public campaign against Amazon caused a 10 percent drop in the company’s stock price in less than forty-eight hours. (It later recovered.)
When the president and his administration opposed the proposed merger of AT&T and Time Warner, CNN’s parent company, the Financial Times cited sources claiming that the opposition was “all about CNN.” [182] This did not seem to be wild speculation. As AT&T advised the court in antitrust litigation with the government, the Trump presidential campaign had issued a release in 2016 with the specific announcement that “AT&T ... is now trying to buy Time Warner and thus the wildly anti-Trump CNN. Donald Trump would never approve such a deal.” [183]
Trump’s aggressive behavior toward the press appears to have influenced members of his Cabinet, or given them free rein to express themselves in the same way. In January 2020, Secretary of State Mike Pompeo berated an NPR journalist, Mary Louise Kelly, after she included in an interview questions about Pompeo’s treatment of Marie Yovanovitch, the former U.S. ambassador to Ukraine. Kelly reported that, after the interview, Pompeo continued to curse her and challenged her to locate Ukraine on a blank map. Pompeo released a statement the next day accusing Kelly of lying about the episode—and the following week, the State Department denied an NPR reporter the press credentials necessary to travel with Pompeo on a trip to Europe. The State Department Correspondents’ Association protested the decision and charged that the removal of the reporter indicated that “the State Department [was] retaliating against National Public Radio.” [184] Trump lauded Pompeo for his contentious interview with Kelly, telling him that he “did a good job on her, actually.” [185]
In this war against the press, Trump could count on allies outside the administration as well. A number of news organizations reported in 2017 and 2019 that supporters of the president had begun to assemble “dossiers” to collect from social media accounts and elsewhere information derogatory to journalists covering the administration. The New York Times responded in 2019 with an extraordinary memorandum from its publisher to staff decrying this apparent escalation in the program of intimidation directed against the press by the “right wing.” A.G. Sulzberger denounced it as an attack on the press that was “designed to harass and embarrass anyone affiliated with independent news organizations that have asked tough questions and brought uncomfortable truths to light.” [186]
In sum, on every level—through rhetoric, restricted access, retaliation, and the apparent launching of smear campaigns by the president’s political supporters—the Trump administration matched and, in some ways, exceeded the Nixon administration in the intensity of its efforts to subdue or work around an “enemy” press.
Reform
The American press today is burdened with a number of severe challenges and pathologies that could alleviate some of the many problems that characterize White House—press relations if redressed. Consistent with our general approach in this book, however, we take the press as we find it and propose reforms only for the executive branch.
A reform program to counter anti-press initiatives by administrations like Trump’s faces several limitations. Presidents and indeed all executive branch officials are free to deal with some reporters and not others. They have the power to exclude critical press voices from opportunities to interview administration officials or even to attend selective, nonpublic press briefings. Presidents can decline to hold any press briefings. They can shut down the White House press briefing room altogether and bar only the reporters they dislike from access to the White House grounds. As one federal court stressed, when ruling on a state governor’s directive that his administration discontinue any contact with two named reporters, it is a “pervasive feature … of journalists’ interaction with government” that public officials favor some reporters and disfavor others. [187] Nor is there a legal route to tempering presidential rhetoric that is calculated to discredit the press in the eyes of the public. Presidents can denigrate the press with the same lack of restraint they exhibit when attacking any of their perceived “enemies.”
There are, to be sure, legal limits on extreme presidential initiatives against the press. Imagine that a president directed the White House staff to harass and intimidate reporters by, for example, coordinating with the IRS to review tax returns and to initiate audits, and with the Justice Department to scour the public record for material it could use to open harassing “investigations.” Such initiatives would implicate various laws, including, possibly, bans on the use of appropriated funds for other than their appropriated purposes, and the general conspiracy statute. [188] There are challenges to enforcing these laws against the president himself, which we discuss in Chapters Six and Eight, and impeachment always remains a remedy. The important point for now is that while extant laws might impact the most extreme and coordinated retaliatory behavior by a White House against elements in the press, they do not begin to address many forms of extreme abuse, refined by Trump, toward the press.
So supplemental approaches to reform are needed to address the problems that have arisen in the past four years, as well as worse problems that might arise in the future. In what follows, we focus on measures to (1) strengthen the mechanism for policing White House conduct toward the press and (2) shore up norms to keep the White House–press tensions from, in the words of a Justice Department report discussed later in this chapter, undermining “the essential role of a free press in fostering government accountability and an open society.” [189] Trump may take pleasure in and seek political profit from casting aside norms. But that is all the more reason to consider ways to reaffirm and strengthen the norms for other executive branch officials, and to try to discourage other presidents from modeling their approach to the press on Trump’s.
Defending Against Retaliation or Reprisal
Without the aid of executive branch agencies, the president has limited ways, beyond the restriction of access, to “punish” his or her press critics. A plan of active intimidation would typically require coordination with those agencies that enforce laws of importance to the day-to-day operations and long-term health of the news industry. Examples would be the Justice Department, in its enforcement of the antitrust laws, or the FCC. Harassment can also in theory be accomplished through the IRS. Measures to protect against presidential intimidation must forcefully defend these links in the chain from presidential direction to retaliatory action.
One such measure we propose is statutorily mandated inspector general review in the agencies that might carry out the intimidation. The Inspector General Act of 1978 authorizes inspectors general in various agencies to conduct audits and investigations relating to “programs and operations,” and to focus in doing so on preventing and detecting “fraud and abuse.” [190] If any actions are taken with official funds, in any program or operation, for other than official purposes—with “improper motive”—those actions may constitute such fraud or abuse. [191] Inspectors general have the authority to investigate directly by subpoena and interviews, and they can report directly to Congress. An action taken on the authority and with the resources of an official position to punish or harass critics in the press is an abuse that any agency inspector general should be empowered to investigate.
Current regulations provide protections against harassment of news media organizations through the abuse or misuse of the federal law enforcement investigatory process. Most notably, Justice Department regulations set out a policy “intended to provide protection to members of the news media from certain law enforcement tools, whether criminal or civil, that might unreasonably impair newsgathering activities.” [192] In balancing law enforcement imperatives and the need to safeguard “the essential role of the free press in fostering government accountability and an open society,” [193] the policy mandates, among other requirements, that the attorney general should treat requests for subpoenas “with care … to avoid claims of harassment.” [194]
We propose that the Inspector General Act be amended to define “abuse” to include official acts—whether or not under the direction of the White House or other senior agency officials—that constitute “reprisal against or an attempt to harass or intimidate” news media organizations or individual journalists in their employ. The amendment would encompass only “official acts,” leaving to the political process the accountability of officials for speech critical of news organizations. The scope of official acts could be drawn from the definition in the criminal law and would include “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit.” [195]
As in the case of every reform effectuated through investigative process, this one is subject to partisan abuse, or “weaponization.” The proposed new inspector general authority could draw demands for investigations that, contrary to the purpose of this reform, sweep up and adversely affect the very news organizations it is intended to protect. For that reason, we would limit the inspector general’s use of compulsory process to the investigation of official acts only. News organizations would participate in and support the investigatory process solely on a voluntary basis.
Just as the press’s legitimate function requires protection, the Justice Department should not be prevented from conducting lawful investigations that involve obtaining needed evidence from reporters and news media organizations. There are a number of regulatory restrictions on the department’s ability to seek to obtain such evidence, but the department should be able to do so consistent with these rules. The proposed inspector general reforms could generate “weaponization” by inviting claims of abuse that are intended solely or substantially to disrupt a lawful inquiry. We propose to address this potential problem in two ways.
First, the inspector general should have the authority to initiate an investigation only on a “look-back” basis, after the investigative steps affecting the media have been completed, or in the event of conflict, after they are resolved through negotiation and judicial process. This limitation on timing would not significantly weaken the effects of the reform. The known potential impact of an inspector general investigation, even if after-the-fact, should heighten the department’s attention to these types of issues in the course of an investigation involving the press.
Second, the inspector general should not proceed with any such investigation if the attorney general certifies that the use of investigative tools directed at the media complied with procedures and limits set forth in current department rules for obtaining information from or questioning members of the news media (or, in the case of other agencies, with substantially similar rules). The requirement of a certification from the attorney general raises the stakes for the department in ensuring that the representation is accurate and in good faith. Moreover, this requirement could serve to heighten department attention to those rules and make it less likely that it would weaken, much less repeal, them.
For purposes of this reform, the rules subject to this compliance certification would have to include the following core elements, as reflected in current rules: First, the use of these law enforcement tools in seeking evidence from the media must, as a matter of department policy, be an extraordinary measure. Second, these tools could be used (1) only when essential to a successful investigation and after reasonable attempts have been made to obtain the information from alternative sources and (2) only after notice to and negotiation with affected news media members or organizations, unless the attorney general has determined that notice or negotiation would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm.
Under our proposal, the inspector general’s findings and conclusions would be reported to Congress. The inspector general statute now mandates that the agencies transmit inspector general activities and findings to Congress, and these reports are both semiannual, to include summaries of “significant” problems or abuses, and “immediately,” within seven calendar days, when those abuses or problems are “particularly serious or flagrant.” [196] We would propose that the statute provide separately for inspector general reports on this look-back basis of press reprisal and harassment cases, and that all such reports must be transmitted to Congress within thirty days of completion. In the event that the inspector general did not investigate because the attorney general provided a certification of compliance with departmental procedures and limits, Congress would be so notified.
The main aim of an amendment to the Inspector General Act is to enhance and reinforce the fundamental norm that the federal government may not devote its investigatory and related resources to undermining the fundamental role of the press in our democracy. [197] By expressly identifying retaliatory actions against these organizations as a form of waste, abuse, or fraud, Congress would be sending a clear message to inspectors general that they should prioritize—and will be accountable for failing to investigate—any evidence of such improper conduct. The specifically mandated reporting requirements, including for investigations not pursued when the attorney general certifies compliance with department process, would enable Congress (and the press) to monitor performance and exercise oversight authority. Inspectors general could also be required to refer evidence of this retaliatory conduct to the Justice Department for examination of potential criminal offenses. A dual-track requirement, with one report to the department and the other to Congress, may ensure that the latter can keep the former honest.
Social Media and Other Public Communication Platforms
President Trump continues to litigate for the control he would like to exercise over his Twitter account. The controversy may seem limited in significance, and relative to other concerns in White House press relations, it is. Yet it retains no small amount of importance in a critical respect.
Nothing other than presidential self-restraint or regulation by social media platforms can be done to temper a president’s uses of them to conduct unfiltered dialogue with the American public. However, Trump has gone further, declaring that his platform of choice, Twitter, is personal, not public, and that he can freely exclude other voices from access as he wishes. The online dialogue he seeks is one he can conduct with an audience he can screen and shape as he chooses. In that sense, Trump’s treatment of his Twitter account is at one with the other restrictions on access that he is imposing on the press. The problem it creates is not so much that day-to-day it makes a practical difference, but the long-term implications for the presidency’s relationship with the press are deeply troubling.
So far, the president has been unsuccessful in vindicating the legal principle. But Congress can and should resolve this issue decisively by amending the Presidential Records Act of 1978 (PRA) to specifically require the president to treat as a presidential record any tweets, including those deleted or altered, and any messaging through other social media or similar public communication platforms. It is widely, but mistakenly, believed that the National Archives has already taken this position. Not so. In fact, it advised Congress that it “does not make ‘determinations’ with respect to whether something is or is not a Presidential record. Rather, [it] provides advice and guidance concerning the PRA upon the request of the White House.” [198]
The court ruling against Trump in the first round of litigation appears to have been based on the belief that the PRA had made such a binding determination and rested its decision that the account was official and not personal in part on that factor. [199] By amending the PRA to make this point explicit, Congress would shore up decisively the public claim on the personal accounts that a president has established on Twitter and other social media and public communication platforms, and end any efforts like Trump’s to preserve these accounts as somehow personal property over which the president maintains complete control.
We propose that the president’s personal accounts be specifically identified as “documentary material” under the PRA. This would bring the accounts under the statute’s definition of “Presidential records” so long as the president uses these accounts to communicate “in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.” [200] While the statutory preservation requirements cover “documentary materials … in digital or electronic form,” [201] Trump has staked out a claim for a “personal communications” channel, usable for official commentaries and announcements, that the PRA would not reach. To ensure that no change in the leadership of the National Archives could result in a reversal of its current interpretation of the records requirements, an amendment to the PRA could provide that the exception in the statute for “personal records” [202] does not include any “accounts a President may create on social media or other public communication platforms prior to or during his or her term in office, if such accounts are used at any time, and to any extent, as a channel for communicating and interacting with the public about his or her administration, policies, or views on public policy or political matters.”
This reform makes clear that the president can never claim a “personal” account for the conduct of official business that falls outside the Presidential Records Act and thus cannot block critics from access as they choose. It also signals the limits on presidents’ use of social media to circumvent the press—to take down completely the “filter”—and build a media environment entirely to their liking and political advantage.
Press Passes
Federal regulations include the rules governing the granting of security clearances needed for White House press passes. [203] The precedent on which the court in the Acosta case relied, Sherill v. Knight , [204] involved the disputed denial of a clearance. The court that resolved Acosta’s case used the same due process requirements: notice, an opportunity for reply, and a written decision. But the Acosta case was not concerned with security. The president and his aides revoked the pass because Acosta, in their judgment, had behaved obnoxiously, disrupting a “fair and orderly” press conference. It was widely understood to be the latest round in a running battle with CNN in which the president’s primary objection was to its critical coverage.
Reform inevitably confronts the reality that the president controls press access to the White House. Presidents can display due regard for press preferences, such as those set out in the White House Correspondents’ Association’s published Practices and Principles of Coverage Access for Independent White House Press , or disregard them altogether. At present, the process by which the White House grants access is entirely informal. The press organization seeking a pass applies for one by letter, the White House Press Office responds affirmatively or negatively, and it does not have a published procedure for this process. The standards for granting or denying the application are also discretionary, published as and when the White House Press Office sees fit. The more formal process involves only the Secret Service’s review of any such application for security purposes.
We propose the institution of a more formal set of procedures and practices for the next White House. If the next president sets a reformed standard for White House–press relations after Trump, it could have some effect on future White Houses. A similar standard-setting exercise that presidents have generally followed is the issuance on the first day in office of an “ethics” policy by executive order. Jimmy Carter led the way after Watergate, and presidents from both parties have met the expectation that they would do the same. Given the fraught state of relations between the press and the president, it would behoove the next president to establish in similar fashion a clear press policy, including the rules of access. Even if not bound by these access rules, future presidents would know that any changes they instituted would be evaluated against the baseline reform. Presidents like Trump might not care, but the departures they ordered would be clear, and it would be more difficult for them to simply publish new restrictions on the pretext of improving “security.”
The regulation now in effect to govern security review of White House press applications provides a foundation for the next president to specify a new policy in clear terms. [205] We propose restructuring the rule so that it reflects all the qualification criteria for White House correspondent status. In effect, the rule would become a two-pronged test: First, the Secret Service would review for security clearances only applicants for a press pass who had otherwise met the qualification requirements established by the White House for access as a correspondent and those qualifications would be specified in the regulation . Second, the Secret Service would issue security clearances to qualified applicants who met those standards except—and only—where “the applicant presents a potential source of physical danger to the President and/or the family of the President so serious as to justify his or her exclusion from White House press privileges.” If there is no basis for exclusion of the applicant as a serious security concern, he or she would be approved for the pass.
Much like the now-established practice that new presidents follow in promulgating ethical standards, a new White House would direct the re-publication of the rule with whatever requirements it proposes to apply for the granting of press passes and would be subject to the expectation that it would re-publish if it amended those qualifications in the course of the four-year term.
We propose that the White House qualifications conform as much as possible to the standards used by the other branches to grant news media access to their space and proceedings. The White House Press Office would follow the Supreme Court, the Senate, and the House in setting out criteria on issues such as what constitutes a news media organization and whether a journalist’s regular reporting responsibilities require the applied-for access. Aligning the branches as much as feasible on these issues allays the concern that the White House might be tailoring its own standards to grant preferential access to certain news organizations.
The regulation would also be amended so that the due process requirements apply both to the initial clearance and to any revocation. This change would conform the rule to the relief ordered by the court in the CNN-Acosta case.
The White House that issues such a more comprehensive regulation can also, of course, revoke it, keeping in place only the due process requirements imposed by the court order that required the promulgation of the rule in the first instance. There is, however, value in calling on the next president to set expectations for the process and to establish transparency for subsequent departures. Proceeding in this fashion would mitigate the problems created when the White House makes up rules on the fly to address specific controversies like the Acosta matter. It also answers the concern expressed by the court in the CNN case that “whatever process occurred within the government is still so shrouded in mystery that the Government could not tell me at oral argument who made the initial decision to revoke Mr. Acosta’s press pass.” [206] A future administration guards against arbitrariness by adopting a clear rule. It makes a strong statement about the role of the press in the conduct of the presidency.
Congress
Congress can play an indispensable role in the protection of the press. In recent years it has taken action to protect news organizations from judgments rendered overseas in courts applying very different libel standards from our own. Yet it does not generally involve itself in domestic disputes over press access to the White House or struggles to overcome presidential resistance to critical coverage. It could and should. We noted previously that Congress did intervene once, in the Schorr episode, to put on record its concerns about the administration’s vendetta against the press.
We have already recommended amendment of the inspector general statute to bring additional resources to the protections against press intimidation. The separate requirements we propose for reporting to Congress—including notifications when the attorney general certifies compliance with department procedures and limits—should serve to engage Congress and enhance the likelihood that these issues will stimulate oversight activity. Oversight could be conducted through the House and Senate Judiciary subcommittees concerned with protection of civil liberties and constitutional rights. Or the Senate and the House could create separate subcommittees dedicated to the issue of press freedom. Once again, the elevation of this issue clarifies, strengthens, and sets up an apparatus for the enforcement of norms.