A lot of journalists are still shuddering with glee at news that Sean Hannity was among Michael Cohen’s legal clients. It is definitely a fun little moment, and it’s always satisfying to see conspiratorial suspicions blazingly confirmed and laid bare. Here is this crooked little bagman targeted by the feds, here is his crooked TV defender, and here they are in literal cahoots.
The fact that Hannity withheld it from his viewers even as he denounced the raid on Cohen’s office—and that as he was denouncing it he secretly extracted a promise from Cohen that he would appeal any order from the court to release his name (so much for that idea)—made it all the more delightful. An asshole stepped on a rake.
But strip away the color and here’s what you have: A person who occupies a journalistic space has consulted an attorney. That attorney’s office and residence were raided by FBI agents, and his files, communications devices, and digital storage devices have been seized. The journalist-ish person has vigorously asserted privilege over any communications with his attorney that may be in those seized files. Prosecutors are arguing with Cohen and Trump about which files they can rifle through, and Hannity is obviously concerned that they not be permitted to rifle through his.
Still, the reaction from most journalists has been a mixture of raucous laughter and green-shade analysis of whether, given Hannity’s clearly false and ham-fisted accounts of his relationship to Cohen, privilege really ought to apply. There is clearly, from some quarters, an eagerness to see Hannity’s confidentiality stripped away so that we, or FBI agents at least, can get a look at what they were talking about.
For anyone who cares about the practice of journalism in the age of Trumpism, this is a foolish and self-defeating position. As loathsome and stupid and conflicted and malign as Hannity is—it’s amusing, by the way, to watch people pearl-clutch at the stunning ethical lapse here from the guy who wrapped up Seth Rich’s grieving parents into a fraud designed to help Julian Assange—journalists should, for reasons tribal and substantive, vigorously oppose any effort by state actors to access his communications with Cohen without clear and convincing evidence that they are unrelated to journalism. (That’s not to say that their contents, if obtained by other means, leaked, etc., wouldn’t be newsworthy.)
If anyone other that Hannity were in this predicament, you can rest assured that we would be reading amicus curae briefs from establishment news organizations right now raising serious questions about the actions of the government in this case. Most reporters work closely with attorneys on important stories, communicating candidly about strategy, confidence level, and in some cases sources precisely because of the expectation that the information could never come into the hands of the government or attorneys who may sue. In many cases, these attorneys work for outside law firms hired by their news organizations.
Just imagine, if you would, the law offices of Davis, Wright, Tremaine, the media law firm currently representing Buzzfeed in a defamation case brought against it by a Russian businessman whose name appeared in the Steele dossier, being raided by agents of the Sessions Justice Department. Or the office of Bob Barnett, the Washington, D.C., uber-lawyer who has represented Andrea Mitchell, Bob Woodward, and Wolf Blitzer as well as just about every politician hawking a book, being secretly surveilled by the FBI. There would be a lot more journalistic energy spent on exploring the propriety of the seizures and intent of the government than on parsing the lawyer-client relationships at stake.
Those cases seem far-fetched. And there remain procedural safeguards—warrants, magistrates, laws—designed to ensure that prosecutors don’t do things like raid lawyers’ offices so they can harass reporters and unmask sources. But there is a 100% likelihood that someone in the White House has been saying Let’s raid their fucking lawyers and see if they like it!!! for the last week. And if the government wants to access communications between reporters and attorneys, it does have unilateral means—administrative subpoenas, national security letters, etc.—at its disposal to do so. Trump is naming right-wing Redditors to the federal bench and picking his U.S. attorneys. It should go without saying that the worst case can and will happen.
By the logic that many journalists have employed in recent years, Hannity ought to have more rights to the protection of privileged communications than Cohen’s other clients. As agents of state power have sought to shut down leaks and punish whistleblowers, most journalists have advanced the notion that they ought to be held harmless from sanctions for refusing to answer lawful subpoenas demanding that they reveal their sources. Many states have shield laws to protect reporters in such instances, but there is no federal equivalent, which is why Judith Miller did time and why James Risen was chased by prosecutors for years.
There is no question that prosecutors can, with a judge’s approval, lawfully order people to answer questions. Nor is there any question that refusal to do so can result in civil and criminal penalties. But Miller, Risen, and many others have argued that the First Amendment protects not just speech, but the ability of journalists to operate free of government interference—including their ability to use confidential sources. Journalists, the argument goes, should be treated differently than other people when it comes to subpoenas for source communications and other editorial deliberations.
I’m honestly not sure if I agree with that argument. I support the idea of resisting state efforts to peek into reporters’ notebooks, and am grateful to all the reporters who have spent time, money, and heartache doing so. But I also reject the idea that journalists are members of some elite priesthood that get special treatment.
But if you buy the special-treatment argument, the same principle should apply to issues of privilege. If it should be much harder for the government to subpoena journalists, it should also be much harder for it to pierce privilege and get into lawyer-client communications for the same reasons.
The facts that Hannity doesn’t call himself a journalist, and isn’t one by the definitions that most of us accept, and operates as an arm of the Trump White House, and is probably crooked, and that whatever he was talking to Cohen about almost certainly wasn’t journalistic in nature, are immaterial. One of the fundamental premises of Trumpism is that the people out there calling themselves journalists aren’t really journalists and shouldn’t be treated as such. Drawing the lines to exclude Hannity from the club is a dangerous exercise when the people in the White House are drawing their own lines, and have the power of the state at their disposal. The wider the circle, the harder it is for the enemies of journalism to isolate and attack their targets.
I’m confident that, at the end of the day, the Hannity-Cohen nexus will end up having been about some con or payoff. But there are a lot of bad people with a lot of power who would love to see what the reporters writing about them are saying to their attorneys, and the Cohen raid caused light bulbs to go off in their heads. The risk it happens again to someone less execrable is non-trivial, and journalists will be in a better position to resist at that point if they speak up now.