Congress Versus the First Amendment

Rep. Anna Paulina Luna (R-FL) announced on social media she would motion for the House Oversight Committee to subpoena Harp. In doing so, she made clear her animus toward not just Harp but the media writ large. She wrote, “The media has gotten away with too much for too long and I’m sick of it. Bring him in.”

Subpoenaing a journalist to compel them to testify about their reporting is an incredible affront to press freedom. Congress is aware of this. In 2024, the House of Representatives unanimously passed the Protect Reporters from Exploitative State Spying (PRESS) Act to prevent the federal government from subpoenaing reporters about their sources or newsgathering. Although it likely would have passed in the Senate, it died when Senate majority leader Chuck Schumer declined to bring it to the Senate floor for a vote.

Given this, one might have thought the move to subpoena a reporter to hold him “accountable” for reporting that a member of Congress disliked might have generated vocal opposition. Instead, the ranking Democrat on the committee, Robert Garcia, proposed an amendment to add a subpoena for the executors of the Jeffrey Epstein estate. Luna accepted it. The motion then passed on a voice vote. According to someone I spoke with who works on the Hill, there were audible no votes. This means the vote was not unanimous, as Representative Luna has falsely claimed on social media.

While there was no recorded vote, it does seem many Democratic members of the committee did vote for the subpoena. Garcia would tell MS NOW’s Eugene Daniels that “Democrats made the decision — if they’re going to subpoena this reporter, which was not our choice, then we’re going to attach these Epstein subpoenas to that vote, and that’s how we got the Epstein subpoenas.” When asked by Daniels if he was concerned about the precedent this might set, Garcia answered, “Absolutely. I mean, look, it’s not a subpoena that we agree with. Either we were going to — either that subpoena was going to go through with no Epstein subpoenas or we were going to attach the Epstein subpoenas to them.”

Following the passage of the bill, the Oversight Committee’s Democratic members released a press release from Garcia patting himself on the back for securing the Epstein subpoena votes. While it does mention this was achieved through amending motions put forward by Luna, the release makes no reference to Harp. Given that the vote to subpoena Harp has been condemned by nearly every press freedom group, it’s unsurprising this detail was omitted.

While congressional Democrats are trying to avoid ownership of the subpoena, Harp’s congressional critics are escalating. After the committee voted to subpoena Harp, Luna then turned toward lobbying the Department of Justice to criminally investigate the reporter. Luna’s “criminal referral” shared on social media lists a number of statutes, none of which apply to the facts of what Harp did. Most do not even apply to what Luna inaccurately alleges Harp did. For example, Luna bizarrely cites statutes about the disclosure of classified communications intelligence, something widely understood to refer to the activities of the National Security Administration, computer hacking, and witness tampering. Even if Harp had exposed the classified identity of a covert operative, which he did not, such statutes would not apply.

Unsurprisingly, Luna cites the overly broad provisions of the Espionage Act, which criminalize the unauthorized disclosure of national defense information. While Harp’s sharing of information obtainable via an official biography or a Freedom of Information Act request are not covered even by the extremely broad Espionage Act, Luna’s calling for Harp to be investigated under the draconian World War I–era law is notable.

Under the Trump and Biden administrations, the Department of Justice prosecuted journalist Julian Assange for publishing classified information. Luna was one of fourteen members of Congress to sponsor a resolution condemning the prosecution on the basis that Assange had engaged in “regular journalistic activities” protected by the First Amendment. As someone who wrote extensively on Assange’s merciless persecution at the hands of the US government, I can say that Luna was correct, a sentiment I wrote to her office expressing at the time. But it is impossible to square Luna’s past views on the First Amendment with her attempts to imprison Harp.

Other congressional critics of Harp seem to be aware that he broke no laws — and some are trying to change that. Or they are at least pretending to. Rep. Pat Harrigan (R-NC) has introduced the “Special Operator Protection Act.” A press release announcing the bill did not mention Harp by name but stated it was in “direct response to recent US Special Operations missions in Venezuela that resulted in the capture of Nicolás Maduro, after which individuals attempted to publicly identify and expose the operators involved.”

The bill’s target is clear. In the press release and social media promotion, Harrigan claims broadly that his bill criminalizes publishing the names of special forces operators. The text of the bill, however, requires one to have the intent to threaten, intimidate, or incite a crime of violence, or the intent for the knowledge to be used for those ends. While this should not cover Harp’s actions, the bill is clearly designed to be vague enough to chill speech broadly. And it is being publicly promoted as criminalizing Harp’s actions, clearly with intent of heightening its chilling effect.

Either way, the bill’s sponsors claim it deals with a “dangerous gap in existing law that leaves Special Operators vulnerable once missions become public.” This is clear acknowledgement that no existing law criminalizes Harp’s actions.

War Abroad, Censorship at Home

Calls to subpoena or prosecute Harp, or even change the law around protecting Special Force operators’ identities, must be considered within two contexts. First, these efforts are being pushed by proponents of the lawless, reckless US foreign policy Harp criticizes. This is unsurprising. The Espionage Act was passed during World War I to silence critics of US participation. It was expanded during the Cold War. And during the Vietnam War, it was first used to prosecute a whistleblower. The law was ratified as the go-to weapon against whistleblowers and used to prosecute a journalist for the first time during the war on terror. Donald Trump’s return to a more naked form of imperialism sets the stage for more repression of critical reporting.

There is also increased pressure on the Right to shield state agents from scrutiny. This has led to an increasingly elastic definition of “doxxing” that is applied to those who publish the identities of public officials. Elon Musk, Charlie Kirk, and then-acting US attorney for the District of Columbia Ed Martin claimed Wired engaged in doxxing or breaking the law by publishing an article about Department of Government Efficiency (DOGE) employees.

As ICE agents have terrorized communities across America, they have anonymized themselves by wearing masks. Right-wing commentators and administration officials have claimed attempts to identify those public officers of the law committing abuses constitutes doxxing. Trump’s National Security Presidential Memorandum-7, a blueprint to crush the Left, equates identifying public officials with domestic terrorism.

Whether Harp is actually served with a subpoena remains to be seen. It is entirely possible that, under public pressure, the committee quietly chooses not to issue the subpoena. But the attacks on Harp are part of a dangerous trend. Social media platforms, demagogic politicians, and the national security state are colluding with one another to drastically roll back the protections of the First Amendment.