Skip to comments.VANITY: Extending Subpoena Power - National Security -
Posted on 09/09/2018 12:28:12 PM PDT by street_lawyer
VANITY I thought you might be interested to know more about the limited privilege a reporter is entitled to in not disclosing confidential sources. The recent N.Y. Times anonymous op-ed individual is quoted as having written that he or she is working diligently from within to frustrate parts of his (President Trumps) agenda and his worst inclinations. Some legal scholars have suggested that various, Treason, Seditious Conspiracy, etc. Federal statutes apply to the activities of the anonymous individual. This is an extreme position since basically these sections of the code requires some use of force; however, there may be another reason why the courts should uphold a subpoena demanding the name of the author.
The leading case holding that a reporter does not have a constitutional right to refuse to testify before a grand jury is Branzburg v. Hayes. Basically, the Branzberg court, a decision of the United States Supreme Court, refused to accept the argument that compelling a reporter to disclose the identity of a person who may be implicated in the commission of a crime would inhibit the free press so as to prevent reporters from obtaining confidential information from its undisclosed and anonymous sources. We find this language in the majority opinion we cannot seriously entertain the notion that the First Amendment protects a newsman's agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about crime than to do something about it.
The question in my opinion is whether the anonymous individual has committed any crime at all? So far no one that I know has made a serious argument that the individual by authoring an anonymous op-ed remarking on events that may or may not be true has committed a crime. Every government appointee takes this oath of office:
I, (NAME), do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.
At least one person has argued that the duties of the office of the presidents staff member is to faithfully carry out the duly elected agenda of the President. The argument is based on Executive Order 10450 (and therefore 5 U.S. 7311) suggesting that actions taken by government officials who have taken the oath of office prescribed by 5 U.S.C. 3331which alters the form of government other than by amendment, is a criminal violation of the 5 U.S.C. 7311. Arguably it is not a criminal violation to refuse to carry out the agenda of the president since this might be an extreme application of the statute. Sally Yates refused to carry out the Presidents agenda when she refused to defend the presidents immigration policy. But perhaps in the case of national security the court might consider expanding the reach of the subpoena even where there is no criminality involved.
The court might accept the argument that where national security is involved it is not necessary to show that the person being protected has violated the criminal law. Assume for the sake of argument that the individual who is opposed to the presidents agenda, say with respect to China, Russia, or North Korea, either because these nations, according to the staff member, do not pose a threat to our national security, or the individual is opposed to tariffs which are imposed by the president because the tariffs are considered to be detrimental to those countries, or for any other reason, the individual chooses to disclose sensitive top level security matters having been informed of the same by reason of the individuals high level security clearance. Perhaps the court could be convinced that the anonymous individual presents danger to our national security, a loose cannon as it were.
The First Amendment right of a free press does not apply to the anonymous individual. But even if it did consider this language of the Supreme Court When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right. The Brandenberg case would not give constitutional protection to speech that might provoke imminent lawless action. In Stewart v. McCoy, decided in 2002, the U.S. Supreme Court further defined the meaning of imminent, remarking that its decision in Brandenberg encompassed mere advocacy. The Stewart court held that the First Amendment does not prevent restrictions on speech that have clear support in public danger.
The anonymous writer admitted being a member of a cabal within the Executive branch. According to the anonymous individual "officials in his own administration are working diligently from within to frustrate parts of his agenda". The agenda arguably is carrying out the mandate of citizens who elected the president based upon his promises to undertake certain measures. Our democracy is based upon elections that have consequences. Thwarting the agenda of a duly elected president inhibits the Presidents ability to exercise and carry out his constitutionally protected duties. In effect refusing to carry out the Presidents agenda alters our form of government. The authority to govern is granted to the duly elected repetitive of the entire electorate. The clandestine usurpation of that authority by unelected bureaucrats violates the tenants of our democracy. As such, diminishing the effectiveness of the Executive imposes a threat to the orderly process of democratic governance. Arguably there is sufficient concern for not only national security but the orderly transfer of authority through the election process. The court should consider extending the reach of the subpoena power of the department of justice to uncover the identify of a person or persons who conspire clandestinely to thwart the orderly administration of government by our democratically elected president.
Well, done counselor. I doubt that there is a real person here.
There’s a lot of sophistry and legalistic lingo being bandied about on this topic. But the bottom line is there is a spy on his staff that holds allegiance elsewhere than the USA.
A criminal probe is justified.
The NY Times should be MADE to give up the name of this person if for no other reason than the outright THREAT made against our President:
“So we will do what we can to steer the administration in the right direction until one way or another its over.”
Although in reality, I think this is merely a publicity stunt designed to support the release of Woodward’s book. This is not actually an op-ed that came from a staffer. If it’s an actual human being, it’s a bitter Omarosa type.
Very good point, if you are I made a statement like that about the president, the secret service will be at our door.
At the very least the New York Times should be persona non grata on any White House grounds
In any case, according to the New York Times, They have a spy on Trump’s staff. I say take them at their word. The New York Times should immediately have all of their credentials for the White House Press pool, press conferences, Etc cancelled by executive order. No embedded reporters with any military unit. No access to any government facility for any purpose.
THEY claim they have a spy so i say take seen at their word.
18 U.S. Code Chapter 115 - TREASON, SEDITION, AND SUBVERSIVE ACTIVITIES § 2381 - Treason § 2382 - Misprision of treason § 2383 - Rebellion or insurrection § 2384 - Seditious conspiracy § 2385 - Advocating overthrow of Government § 2386 - Registration of certain organizations § 2387 - Activities affecting armed forces generally § 2388 - Activities affecting armed forces during war § 2389 - Recruiting for service against United States § 2390 - Enlistment to serve against United States § 2391 - Repealed. Pub. L. 103322, title XXXIII, § 330004(13), Sept. 13, 1994, 108 Stat. 2142] (Cornell.edu)
Thanks for the straight poop, but this is more of a political than legal issue. The Times would love to martyr itself over protecting its source and Trump knows this so he will rattle the saber but won’t give them the opportunity. It would probably mean thousands of new subscribers, and he’d rather watch them fail.
Sedition is overt conduct, such as speech and organization, that TENDS toward insurrection against the established order. Sedition often includes subversion of a constitution and incitement of discontent towards, or resistance against established authority. Sedition may include any commotion, though not aimed at direct and open violence against the laws. Seditious words in writing are seditious libel. A seditionist is one who engages in or promotes the interest of sedition.
Hey, what a clever way, The Times, to fool Whitehouse Staff into turning against each other.
Libs are so clever, realizing conservatives are not skeptical thinkers falling for the bait every time. If The Times suggest a staffer wrote the article, then surely we have to believe that is true. I mean why else would they want to tell us something that is not true?
Just tell the Slimes that the editorial is considered fake until proven otherwise.
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