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Joe Biden’s DOJ prosecutes journalist Tim Burke while pretending otherwise.

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简介When President Joe Biden said “journalism is not a crime” last April, federal prosecutors in Tampa, ...

When President Joe Biden said “journalism is not a crime” last April, federal prosecutors in Tampa, Florida, apparently took that as a challenge. Not a crime yet.

The next month, FBI agents raided the home of journalist Tim Burke. He is scheduled to be arraigned in the coming weeks under the Computer Fraud and Abuse Act (CFAA) and wiretap laws for finding and disseminating unaired Fox News footage of Kanye West’s antisemitic rant to Tucker Carlson. The indictment doesn’t accuse Burke of hacking or deceit. Instead, its theory is that he didn’t have permission to access the video, even though it was at a public, unencrypted URL that he found using publicly posted demo credentials.

But finding things that the powerful don’t want found is essentially the definition of investigative journalism—which, as Biden said, is not criminal in this country.

A recent court filing heightens concerns about whether prosecutors hid from the judge who authorized the raid that Burke was a journalist. By doing so, they may have avoided scrutiny of whether their investigation—and eventual indictment—of Burke complied with the First Amendment, federal law, and the Department of Justice’s own policies.

The case is reminiscent of last year’s alarming raid of the Marion County Record. Authorities there ignored laws like the federal Privacy Protection Act of 1980, or PPA, which largely prohibits rummaging through journalists’ files. But that was a local police department in rural Kansas. Burke’s case involves the FBI and DOJ, who should clearly know better.

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Burke’s filing says prosecutors referred to Burke as a “former journalist” in their affidavit to get their warrant. (That document remains sealed from the public; it should be released.) That’s a head-scratcher: After all, the whole case arises from him breaking national news.

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The indictment also doesn’t say a word about Burke’s journalism. Instead, it accuses him of “scouring” the internet for items he found “desirable.” You might think he sought the footage for a private collection, not to inform the public that a major news network covered up a music superstar’s antisemitism.

If there’s any doubt Burke’s reporting served the public, remember that West ran for president in 2020. Sure, his campaign was unserious, but, as it turns out, celebrities who first flirt with the presidency for attention can eventually win it.

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Burke—previously most known for breaking the story of the Manti Te’o catfishing hoax—doesn’t work full time for a news outlet anymore, but that doesn’t mean he’s not a journalist.

And that’s according to the DOJ itself. The day before indicting Burke, the DOJ released guidelines which say employment by a news outlet is just one of many factors relevant to whether someone is a journalist. Burke easily satisfies almost all the others.

Plus, the PPA prohibits law enforcement searches of anyone “reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication,” regardless of whether they’re a journalist. The First Amendment’s press clause is obviously not limited to the establishment media, which didn’t exist at the time.

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Nonetheless, by calling Burke a “former” journalist, prosecutors avoided raising red flags that might’ve held up approval of their constitutionally dubious investigation under a law that is notoriously prone to abuse. Subjects of warrants aren’t notified of hearings, so Burke had no opportunity to correct the affidavit. The burden was on prosecutors to be candid.

They weren’t—not at the warrant application stage or since. Prosecutors have claimed they complied with the law and their own policies, but they’ve never explained how—by following the requisite procedures or by determining that they didn’t apply to a “former” journalist? Did local U.S. attorneys escalate the issue to national higher-ups, as the policy requires?

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The caginess can’t be pinned solely on rogue prosecutors in Florida. Over 50 organizations alerted Attorney General Merrick Garland to their concerns last October. They asked for answers both about prosecutors casting doubt on if Burke is a journalist and about the theory that journalists scouring obscure but publicly available websites for news can violate laws like the CFAA, which the DOJ itself admits is vague and prone to abuse. They never got a response.

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That’s a problem. Reporters are sure to self-censor if they can’t be sure what kinds of journalists and what kinds of journalism the DOJ believes the First Amendment protects. The same way the Espionage Act charges against Julian Assange chill national security reporting, the CFAA charges against Burke chill digital journalism.

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Under both overbroad laws, the DOJ believes it can, at its whim, criminalize routine newsgathering—whether obtaining government documents from sources or scouring obscure corners of the internet—whenever prosecutors believe journalists crossed some arbitrary line.

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The DOJ’s position that Burke isn’t a journalist may also enable it to take another troubling step. The government seized Burke’s computer equipment and files, and it’s demanding Burke forfeit them permanently if convicted. Forfeiture may be an accepted remedy in some criminal cases, but it’s quite unusual for journalistic notes and communications to be treated as contraband, especially when they include materials having nothing to do with any alleged crimes.

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If the government is successful, it could not only put confidential sources in jeopardy but could effectively kill any other stories Burke had in the works. Forfeiture is a dangerous weapon for the DOJ to attempt to add to its expanding arsenal against journalists.

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Burke’s case should not be viewed in isolation. Since Marion, we’ve seen an Alabama district attorney charge journalists with felonies for reporting on alleged misappropriation of COVID funds. We’ve seen a disturbing increase in “prior restraints” against publication. The City of Los Angeles even sued a journalist for printing information the city gave him. This month we learned that San Francisco authorities sought a warrant against a local news outlet and got a gag order barring the journalists from talking about it. In Burke’s hometown of Tampa, the fire chief recently called police on a journalist for seeking public records. The list goes on.

And in many instances, journalists face these threats while newsrooms that in the past would have supported them are collapsing. With all the other challenges journalists face these days, it’s an awful time for the DOJ  to be testing the outer limits of badly written laws to dream up new ways to prosecute them. If the Biden administration really believes that “journalism is not a crime,” it should be helping to solve the press’s problems, not compounding them.

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