“We will go out and find the conspirators, not just in government but in the media. Yes, we’re going to come after the people in the media who lied about American citizens, who helped Joe Biden rig presidential elections — we’re going to come after you. Whether it’s criminally or civilly, we’ll figure that out. But yeah, we’re putting you all on notice.” — Kash Patel, Trump’s presumptive nominee for Director of the FBI.
For many this quote should disqualify Kash Patel because of its strong suggestion that he will pursue illegitimate prosecutions against journalists who simply reported the truth of Trump’s losing the 2020 election, or are (or were) critical of Trump. The concern for retaliatory justice evidenced by these words is absolutely valid. However, I would like to present another cause for concern.
Patel’s words could compromise even a legitimate prosecution of a journalist or effort to gain information from a journalist. The above words from Patel arm even a corrupt journalist with the argument that a prosecution, or grand jury investigationa is in bad faith and intended, not to advance justice, but is simply political retribution and harassment.
The seminal case in this field is Branzburg v. Hayes. This 1972 Supreme Court case is a rather fractured one, but it generally held the government’s interest in prosecuting crime overrules a reporters right to keep sources (or information) confidential, particularly when the reporter witnesses crimes being committed. However, there is a notable exception to that general rule. It presumes the good faith of the prosecution or grand jury proceeding.
“news gathering is not without its First Amendment protections, and grand jury investigations, if instituted or conducted other than in good faith, would pose wholly different issues for resolution under the First Amendment. Official harassment of the press undertaken not for purposes of law enforcement, but to disrupt a reporter’s relationship with his news sources would have no justification. Grand juries are subject to judicial control and subpoenas to motions to quash. We do not expect courts will forget that grand juries must operate within the limits of the First Amendment as well as the Fifth.” -Decision of the Court, Branzburg v. Hayes.
Patel’s statement has provided every reporter, both the good and the evil, the gift of a strong argument that any government investigation of them, or demand for their source, is instigated in bad faith and for the purpose of harassment. Normally, prosecutions and grand jury proceedings are entitled to a strong presumption of legitimacy and good faith. It’s even called “the presumption of regularity.” Since good faith and the regular administration of justice is presumed, those asserting bad faith and harassment bear the burden of proof. Kash Patel’s statement provides evidence of irregularity for any journalist who has run afoul of Trump.
Certainly statements suggesting the FBI could be weaponized against innocent people are damning. However, that the same statements could also be exploited by guilty people should also be concerning. It’s not hard to imagine how Patel’s words could place at risk even investigations related to legitimate concerns for national security. This is one reason why people in positions such as the one Patel now seeks need to not have a history of such compromising language.
