Hegseth calls his department the War Department and himself the War Secretary with the cooperation of the Trump administration, but those are name changes that have not been approved by Congress.
The FBI’s part in the task force is currently being advertised as a minor role. At this point, the plan is to have the federal law enforcement agency be involved only when necessary. There is a good chance its role will grow over time as agents end up seizing things and serving warrants and subpoenas.
Plumbers Versus Journalists
The purpose of the DOD-DOJ joint task force is to identify, prosecute and otherwise root out leakers. Initial targets will involve leaks that the White House represents as threatening to national security.
The second Trump administration has proved willing to use means including invading a Washington Post journalist’s home and seizing her phone, smartwatch and computers to get at an alleged leaker, and subpoenaing several New York Times journalists and demanding that they testify about their sources.
Their stories had to do with leaks related to the raid and capture of Venezuelan President Nicolás Maduro and questions about the security of the latest Air Force One plane that was donated to the US government by Qatar.
US courts have generally held three different things to be true regarding leaks that appear in the press:
1) It is a crime to take and knowingly leak classified information.
2) It is not necessarily a crime to publish that information, so long as the journalist was not a party to the first crime. For instance, it would not be legal for a reporter to break into a government facility along with their source to get at information.
3) Journalists are generally not required to divulge their sources, as that could violate the US Constitution’s freedom of the press and the general prohibition against compelled speech. Part of free speech, after all, is the right not to speak. Courts can override it, but it is a high legal bar.
However, all of this gets dicey when national security comes into play because of the huge number of official secrets laws that apply. The Trump administration is pressing the national security angle extra hard. Hegseth treated his department’s efforts as a continuity with previous US government policy by invoking the father of his country, George Washington, who “battled leaks, insider threats and espionage”.
The nonpartisan educational website GovFacts explains that no journalist has “ever been prosecuted under the Espionage Act for publishing classified material”, but shows how that could easily change as the law “technically applies to anyone – including reporters – who communicates national defense information to people not authorized to receive it”.
While journalists may “assume the First Amendment protects them”, GovFacts said, a motivated government could assume something else. The courts would then have to sort it out.
That would be a great expense for the news organizations. They would have to shell out for lawyers who bill by the hour. And they would face a Justice Department that has vastly more resources at its disposal.
Fear of an adverse ruling that becomes binding precedent could make the US government swerve in a game of legal chicken. Yet the Trump administration has proven less likely to alter its course over legal threats than most administrations.
First Amendment Concerns in Congress
Jay Clayton is the US attorney for Manhattan whose office issued subpoenas against the Times journalists on the Air Force One story. He is also the Trump administration’s nominee to fill the hole Tulsi Gabbard left when she resigned as director of national intelligence. That role is being covered on a temporary basis by Federal Housing Finance Agency head Bill Pulte.
Naturally, senators had questions for Clayton about the subpoenas during his 15 July confirmation hearing. “I think it’s very important for you to explain this”, Colorado Senator Michael Bennet told him. Bennet is a Democrat who worked in the Clinton Justice Department. He expressed worry about what the case could mean for free speech and freedom of the press and probed about possible political interference from the Trump White House.
Clayton said that he could not “get into the specifics of an investigation in an ongoing matter”, but that did not stop him from dropping broad hints. He declared himself “confident that the procedures that we have in place to protect the First Amendment – and protect the freedom of press, and not result in intimidation of journalists or the like – were followed”.
The nominee for head of US intelligence also pushed back, saying that, “if national security interests are at stake”, it was “vitally important” not to allow someone, “including our adversaries”, to get information to the public “without any potential for discovering how that happened”.
Clayton and the DOJ have said two explanatory things on the Times subpoenas front. One is that the journalists are not being targeted for prosecution. That means that the government wants information from them, not jail sentences. However, a lack of cooperation could well eventually lead to that.
The second thing is that the government is only doing this because it feels it has no other options, and thus the case, dealing with Air Force One security, could be an exception. “That concept of ‘least intrusive possible’ is front of mind for me”, Clayton told the senators in the hearing.
From Washington to Bondi
Most of what the government has said to justify the task force and to press these specific cases is open to factual challenge.
Take Hegseth’s invocation of George Washington, for instance. It is true that Washington had to deal with “leaks, insider threats and espionage” and did not always play by Marquis of Queensbury rules. But that is mostly applicable when Washington was a general, during a bloody war between the colonists and the mother country. It was much less true when he was president.
In fact, safeguards for freedom of speech and of the press were codified on Washington’s watch with the passage of the Bill of Rights, or the first 10 amendments to the US Constitution.
Clayton’s assurance to Congress that all appropriate procedures were followed leaves out the fact that many procedures and safeguards had been gutted. This happened under former Trump Attorney General Pam Bondi last year.
She wrote in a 25 April 2025 memo to the department that she was rescinding “policies precluding the Department of Justice from seeking records and compelling testimony from members of the news media in order to identify and punish the source of improper leaks”.
It was because of that memo that the FBI was able to seize the equipment and information from Washington Post reporter Hannah Natanson in January. It may have empowered the issuance of subpoenas to the Times reporters as well.
Thomas Hobbes Takes the Wheel
The essayist Christopher Caldwell recently painted America as a country that is “Lockean in peace, Hobbesian in war”. John Locke and Thomas Hobbes were philosophers who have been associated with natural rights on the one hand and the war of all against all on the other – the latter of which has to be held back by a strong state that is absolutely sovereign.
Americans have been polled as having mixed feelings when it comes to free expression when it is complicated by war, national security and even some protests.
In his remarks announcing the joint task force, Hegseth said something that was perhaps telling of the Trump administration’s attitude toward the press and the information flow that newspapers, television networks and other media facilitate for the American people.
“The security of our nation cannot be a bargaining chip for those who seek momentary headlines”, Hegseth said. In other words, they are doing it for the cheap clicks and must be stopped.
One probable reason for leaks may be that America’s official secrets laws are overbroad. The current president and his predecessor both ran up against them: Donald Trump was indicted over his handling of classified documents, while Joe Biden was investigated but not charged. Former national security advisor John Bolton pled guilty to a felony after undertaking what he believed to be a good-faith effort to excise any classified material from the memoir of his time in the White House.
Bolton argued that the Trump administration was carrying out a political vendetta against him. Andrew McCarthy, the former prosecutor of the World Trade Center bombers who is broadly supportive of the Trump administration, made the case that the White House and Bolton were both wrong in their own way.
There are Lockean elements of the Trump administration that still favor the maintenance and even the expansion of free speech in certain spaces. But right now, when it comes to anything that has a whiff of war and national security about it, the Hobbesians have the wheel.
