Saturday afternoon, the FBI raided former US senator Bob Casey’s home in Philadelphia. Initially there were suggestions that it was something to do with an investigation of the situation of the store owner whose store Casey had championed. As it turned out, that was simply not the case.
The government told a federal judge it had taken the many documents and computers that might be relevant to an investigation into why Casey failed to report income from his salary and speaking fees. He has since pleaded guilty to three misdemeanors. If he failed to report the income the money could have been subject to scrutiny in the criminal justice system and, potentially, financial penalties.
With hindsight, after the shocking case of Rick Gates, on Tuesday of this week, I am not surprised there are questions about the attorney general Jeff Sessions’s commitment to recusing himself from the case that have not been resolved.
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I believe when it comes to the jailing of media professionals, the US president will, I hope, never pardon the man he fired – and while there is no suggestion Bob Casey has been anything but an unvarnished champion of media freedom, in this case it was deeply regrettable. The case highlighted how our judicial system falls down in treating journalists. In the United States, we are afforded the same rights as any other American accused of crime. As a result, when there are four or five prosecutors fighting one charge, our media professionals are considered as witnesses and not suspects.
Not surprisingly, this lack of process hampers our right to justice. Five years ago this week, the US supreme court ruled against Edith Gutierrez, who was seeking to have the conviction of her right to free speech thrown out, or at least reduced, after an appeals court found Gutierrez “repeatedly used her position” as a secretary of a store owner.
Gutierrez had been arrested for civil disobedience after chanting “Hey hey ho ho, the media has got to go!” at the White House, during a protest against health insurance reforms. The media act is a popular act among some in the anti-Trump resistance, who have been protesting at the election of Donald Trump ever since he was elected.
This has never been seen in the history of the US judicial system and its only relevance is that it demonstrates the irrationality of an over-the-top prosecution which has nothing to do with the original charge that triggered the arrest. Having previously refused to make evidence available for Gutierrez’s defence, the news media are obliged to treat any charges as a possible indictment, which is where we, as judges, have to disentangle the legal and political, as they often are.
We have to explain that it is still a criminal offence for a member of the media to heckle at a public event. In this case, the same applies to “the media”. In such charged circumstances, my job has been to be the press’s advocate, by being protective of the media’s ability to hold the government to account, without it feeling it has a right to exact retribution.
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This, while protecting the freedoms of the press. The result has been a series of disastrous political outcomes for the liberal media and an almost perfect record of anti-media bias in US judicial systems. This is not a problem unique to the United States. Politicians all over the world fight for the rights of the press to raise questions, and they have very seldom felt compelled to prosecute journalists for the offence of the “crime of shining a light” on government, so to speak.
There has been criticism in the past of the limited nature of the rules that apply to the media in criminal cases. In my view the whole system has been taken over by the political because the system has, as far as journalists can tell, provided no consistent standard of protection for journalists.
This has produced a dangerous situation where in America, those who support the media and the right to campaign, can never know when they are going to be prosecuted, and those on the other side have felt no need to protect these indefensible actions of the government.
Donald Trump has recognised the danger this creates and he will never tolerate the media acting similarly in his country. He owes a debt of gratitude to those who take a stand for media freedom, regardless of the adversity.
• Joshua Frank is a former federal prosecutor