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When Atlantic magazine editor-in-chief Jeffrey Goldberg exposed what is being called “Signalgate”—reporting on a group chat he got added to where high-level government officials shared sensitive information about U.S. plans to attack Houthi rebels—he was taking a big risk, though he did nothing unlawful. A little-noticed prosecution of a journalist in Tampa, Florida, initiated by the Biden Justice Department has laid the groundwork for a potential criminal prosecution of Goldberg—and the Trump administration’s hostility toward journalists does not bode well.
Rather than admit responsibility, agents of the Trump administration have attacked Goldberg as “a deceitful and highly discredited, so-called journalist who’s made a profession of peddling hoaxes time and time again” and a “horrible, radical-Left lunatic” and “total sleazebag” working for a “magazine that is going out of business” whose reporting is “bad for the country.” The national security adviser has indicated that his legal teams are looking into how Goldberg got onto the Signal group and has suggested (without evidence) that Goldberg may have fraudulently joined the group.
Certainly the DOJ could investigate Goldberg for “obtaining unauthorized access to information relating to the national defense” and “willfully communicating that information”—a violation of espionage law. And Attorney General Pam Bondi has expressed her desire to go after both leakers and journalists, but such a prosecution would be a real stretch, particularly where, as here, the government claims that the information disclosed was not classified.
More significantly, the government could prosecute Goldberg for “eavesdropping” on the principals’ conversations—that is, “acquiring the contents of electronic communications” despite the fact that he was invited to the chat, and therefore was at least a silent participant. The federal eavesdropping law, 18 U.S. Code 2511, specifically provides that it’s not a crime if a participant to an electronic communication consents to the monitoring (here, that would be Goldberg), or if the communication itself was made on a server that was configured to be readily accessible. So no crime, right? Not necessarily.
In the case of my client, journalist Timothy Burke, the government alleges that he downloaded the unencrypted and unprotected contents of an interview between Fox News’ Tucker Carlson and Kanye West from a publicly accessible server by determining the web address used for the transmission. Burke argued that, irrespective of the intent of Fox News, the transmission of the interview was on a server that was “configured to be readily accessible to the public” and that neither Carlson nor West had any reasonable expectation of privacy in the contents of the broadcast. Like the communications “acquired” by Goldberg, the journalists’ “listening in” was legal, except that in Burke’s case, what he was “listening in” on was created for broadcast to the world.
Here’s where it gets hairy: In December of last year, the Burke prosecutors asserted that, whether or not the communications were private, whether or not the parties consented to the acquisition of the contents, and whether or not the communications were on a public server, the journalist can be prosecuted for acquiring and publishing them—even though the law says that acquiring contents from a public server is not a crime!
The government filed a motion in court claiming that journalists who publish other persons’ conversations can be prosecuted (irrespective of whether law permits the acquisition), but that they have available to them an “affirmative defense” that the parties consented to the acquisition, or that the communications were otherwise public. As an “affirmative defense” the government could go ahead with the prosecution, and the defendant would have to prove that they were not guilty.
As a practical matter, this means that reporters can be investigated, their offices raided and contents of decades’ worth of reporting seized, they can be indicted and prosecuted, but that a journalist like Goldberg could, at trial—and only at trial—present evidence that he was invited to the group chat, and the jury would be entitled to acquit him. The government has no burden of proving anything other than the fact that Goldberg “eavesdropped”—that is, that he acquired the contents of the communication. In short, the journalist must prove that he committed no crime. The Burke prosecutors claimed that the charged journalist “is better equipped to prove that an exception [to the wiretap prohibition] is available and to take advantage of that exception.” By that point, the damage is done.
Of course, the point is to exert maximum pressure on journalists who publish things that the administration does not want published, to put them out of business, and to deter future reporting. While the Biden administration initiated the prosecution of Tim Burke (based on an investigation by Fox News and its lawyers), the Trump administration has turbocharged attacks on journalists. They have launched civil lawsuits against 60 Minutes and ABC News and the Des Moines Register for claimed “unfair” reporting, used the @RapidReponse47 Twitter/X account to make personal attacks on reporters, attempted to dismantle Voice of America, opened Federal Communications Commission investigations into PBS and NPR, claimed that reporting by CNN and MSNBC is “illegal,” and even banned the Associated Press from the White House. The current administration has taken every opportunity to marshal its resources against reporters and reportage it does not like.
Not many independent journalists can afford to take on the might and majesty of the Department of Justice. Thus, even though we can all agree that the Atlantic’s Goldberg did nothing unlawful, this does not provide even a modicum of assurance that the government won’t prosecute him. And that’s, perhaps, the whole point.
