With the Presidency, the House, the Senate, and the Supreme Court controlled by rightwing Republicans, the fundamental mechanism imbedded in the Constitution by its authors, checks and balances that can constrain extremists and can control a radical President, may no longer operate.
In Federalist Paper 51, written by James Madison to advocate for state approval of the Constitution in 1788, Madison explained the fundamental importance of checks and balances in the proposed system of government.
“In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department [branch of the federal government] should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others . . . [S]ecurity against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others . . . In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself . . . [T]he constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other . . . “
In this case the last “check” on Donald Trump may be an independent media. The importance of a free press to the survival of democratic principles and liberty was recognized in the First Amendment to the Constitution. “Congress shall make no law . . . abridging the freedom of speech, or of the press . . .” To remove this last check on the goals of his Presidency, Trump seems determined to silence media. According to the Committee to Protect Journalists, since 2017, Trump has repeatedly attacked the print and broadcast press for reporting “fake news,” as “dishonest,” “corrupt,” “low life,” “bad people,” “human scum,” and as the “enemy of the people.”
Trump and his allies are also launching legal attacks on the media charging it with misrepresentation and bias in campaigns to silence criticism. ABC News has already agreed to donate $15 million to a future Trump library because one of its commentators misstated the reason a Manhattan jury awarded one of Trump’s accusers a substantial payment. ABC News might have won in the courts, but the defense would have been costly in terms of money and Trump’s ill-will. ABC, which is owned by Disney, will also pay $1 million towards Trump’s legal fees. Trump currently has other lawsuits against The Des Moines Register, CBS News 60 Minutes and the Pulitzer Prize Board for awarding The New York Times and The Washington Post for their coverage of Russian interference in the 2016 U.S. presidential election and is threatening further legal actions.
Among other things, Project 2025, a rightwing blueprint for the second Trump administration, proposes to eliminate funding for the Public Broadcasting Service (PBS) and the National Public Radio (NPR) and remove their legal status as non-profit organizations so they would be required to pay large licensing fees to continue to operate. Project 2025 also propose eliminating journalist access to the White House to limit their ability to question and report on the Executive Branch of government
Kash Patel, the ultra-Trump loyalist nominated to become Director of the Federal Bureau of Investigation, has already announced that the Trump administration will target unfriendly news sources, “We’re going to come after you, whether it’s criminally or civilly — we’ll figure that out.” As both a candidate and previously as president, Trump called on the FCC to revoke the licenses of “fake news” media outlets including NBC, its cable news station MSNBC, and CBS. He announced he would bring independent under Presidential control and Brendan Carr, his nominee as chairman of the Federal Communications Commission, a contributor to Project 2025, promises to carry out Trump’s directive to punish networks he deems guilty of anti-Trump political bias.
An unscrupulous and dictatorial Trump has other legal tools he can use in an authoritarian way in his war on an independent media. The Insurrection Act of 1807 remains in effect and authorizes the President to use the military to quell domestic insurrections, enforce federal laws, and prevent unlawful combinations and conspiracies. In theory, Trump could accuse the press of engaging in a conspiracy against him. The National Emergencies Act (NEA) of 1976 grants the President authority to declare a national emergency that grants extraordinary power and can remain in effect for a year when it would have to be renewed..
The Communications Act of 1934, the law that created the FCC, contains a clause that authorizes the President if “there exists war or a threat of war, or a state of public peril or disaster or other national emergency . . . in the interest of national security or defense” to suspend the “rules and regulations applicable to any or all stations or devices capable of emitting electromagnetic radiations within the jurisdiction of the United States.” Another clause if invoked would give Trump authority to suspend regulations governing “wire communication” like phone service and the Internet.
Trump can also have all routine Executive Branch actions classified and have the Justice Department headed by another Trump acolyte prosecute news outlets and journalists for violating the 1917 Espionage Act if they cover classified information or release leaked documents. In the 1971 Pentagon Papers case, the Supreme Court ruled that the Nixon administration could not prevent the New York Times from publishing the secret government report Daniel Ellsberg discovered about U.S. involvement in the Vietnam War. However, a majority of the Justices on the court at the time said they would be willing to consider a criminal case against the New York Times after publication of government secrets in violation of espionage statutes.
In another case, Branzburg v. Hayes (1972), the Supreme Court ruled that a grand jury could compel a journalist to disclose the identity of confidential sources who may have committed crimes. The court ruled “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 Branzburg v. Hayes means federal prosecutors working in the Trump Justice department investigating a leak could subpoena a journalist or a news source publisher to testify before a grand jury and compel them to identify the source of a leaked “classified” document or information. In 2005, Judith Miller, a journalist working at the New York Times Washington Bureau, was jailed for 85 days for contempt of court for refusing to identify a confidential source.
Let’s not pretend the situation in the United States today is normal or that the Trump administration will follow long established guidelines. We should anticipate that they won’t. It may fall about the print and broadcast media and journalists as a last line of defense to protect Constitutional rights in the United States. I’m just afraid they will cave.
