View in browser The Trump administration’s war against freedom of the press has reached a startling new low. According to a report this morning from MS NOW, the FBI has opened a criminal investigation focusing on my Atlantic colleague Sarah Fitzpatrick, related to an article she published last month about Director Kash Patel. Drawing on some two dozen sources, Fitzpatrick reported that people inside the administration and the bureau are deeply concerned about what they described as Patel’s unexplained absences and excessive drinking. Patel filed a lawsuit against Fitzpatrick and The Atlantic following the story’s publication, alleging defamation and demanding $250 million. The Atlantic says that it stands by Fitzpatrick’s reporting, and legal commentators from across the political spectrum have concluded that the case is weak and likely to fail. Editor in chief Jeffrey Goldberg responded to the MS NOW report with this statement: “If confirmed to be true, this would represent an outrageous attack on the free press and the First Amendment itself. We will defend The Atlantic and its staff vigorously; we will not be intimidated by illegitimate investigations or other acts of politically motivated retaliation; we will continue to cover the FBI professionally, fairly, and thoroughly; and we will continue to practice journalism in the public interest.” Filing a flimsy civil lawsuit as a private citizen is Patel’s right, though it is also plainly an inappropriate attempt to smother unflattering reporting. But if Patel’s bureau has launched a criminal investigation into a reporter, employing the power of the federal government, that would be a significant escalation. An FBI spokesperson denied that a probe exists, telling MS NOW, “This is completely false. No such investigation like this exists and the reporter you mention is not being investigated at all.” But MS NOW reports that some of the FBI agents assigned to the case are upset. “They know they are not supposed to do this,” a source told the network. “But if they don’t go forward, they could lose their jobs. You’re damned if you do and damned if you don’t.” It would be notable if the Trump administration is launching a criminal probe focusing on a member of the press. Previously, the administration has frequently threatened the free press in other ways. President Trump himself has demonstrated either ignorance of or disregard for the First Amendment, saying that negative coverage of him is “really illegal.” He has filed many of his own lawsuits against news organizations; last month, a judge dismissed a suit against The Wall Street Journal for (accurately) reporting on a card that Trump sent the late sex offender Jeffrey Epstein featuring a doodle of a naked woman. Trump has attempted to banish outlets from the White House for refusing to use his new name for the Gulf of Mexico, and his Federal Communications Commission has repeatedly threatened news outlets with loss of broadcast licenses and other sanctions. The existence of a criminal probe would be notable for other reasons as well. First, the investigation is reportedly being run out of the FBI’s insider-threats unit. That’s exactly what it sounds like: a team charged with monitoring actions by federal employees or contractors who have access to sensitive information and might reveal it, harming national security. Fitzpatrick is obviously not an insider. Second, neither Patel nor anyone else has publicly alleged any violation of the law on Fitzpatrick’s part in any other venue. Nor does his lawsuit or any public statement allege that Fitzpatrick reported classified information. Reporters do sometimes publish classified information when it is in the public interest, and although every government hates this, they have generally responded by attempting to find and prosecute leakers, not reporters—although the government has sometimes tried to compel reporters to testify about sources. Earlier this year, FBI agents seized devices from a Washington Post reporter who obtained leaks, but she was never reported to be a subject of investigation herself. This situation lacks even a pretense of national-security threat. If the report is true, Patel appears to have launched a criminal investigation into a reporter simply because he was embarrassed by her reporting. Even for an administration with an awful record on press freedom, and a bureau with a history of unsavory actions by directors, this is a dangerous step. The lack of any apparent or even alleged wrongdoing, as well as Patel’s precarious hold on a position for which he was never qualified, mean that any investigation may never result in charges. But the Trump administration has shown its awareness that an investigation itself can be an effective way to intimidate critics or even neutral reporters. Targets are forced to spend time on the matter and pay for legal representation, even in clearly frivolous situations. Goldberg has made clear that The Atlantic will not be intimidated, but as I have written previously, those with less ability to defend themselves may make different calculations as a result of government pressure. Unfortunately for Patel, the investigation is also likely to pique the interests of reporters and encourage more leaks from those inside the bureau who remain devoted to rule of law. Those two groups today far outpace the director in embodying the FBI motto “Fidelity, bravery, integrity.” Related stories:
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