Tim Burke’s Indictment Is A Political Choice Disguised As A Legal Act

Last week, the journalist Tim Burke was arrested in Florida after a grand jury charged him with 14 federal crimes: seven counts of unlawfully intercepting or disclosing wire, oral, or electronic communications; six counts of accessing a protected computer without authorization; and one count of conspiring to do those things. The indictment sprinkles a handful of cinematic verbs across 26 pages of what is otherwise legalese and boilerplate, accusing Burke of “scouring” computers and “exploiting” information he “deemed desirable.” If convicted, Burke, who previously worked at Deadspin and The Daily Beast, faces up to 62 years in prison, depending on how magnanimous the judge feels at sentencing. (Disclosure: The majority of Defector's staff worked with Tim Burke at Deadspin.)

Indictments tend to be long on euphemistic pseudonyms and short on specifics. But the basic narrative is as follows: In 2022, a Twitter user whom the indictment calls "CONSPIRATOR 2"—Burke says he doesn’t know that person’s identity—DMed him two sets of login credentials. One set was for the file transfer protocol server of an unidentified sports league, and the other was for a back-end streaming platform used by broadcasters that the indictment refers to as "Network #1" and "Network #2"—one of which, for reasons that will soon become apparent, is Fox News. These credentials gave Burke access to feeds of the broadcasters' cameras, even if they weren’t on air. Over a few months, Burke downloaded a handful of clips that he “disclosed” in various formats, all without the express written consent of Rupert Murdoch.

The crux of the legal dispute here is what, exactly, makes access to a computer “unauthorized.” Burke says his streaming login was not pilfered from Fox News, but instead came from the public website of a Tennessee radio station, which willingly posted its credentials for its listeners’ convenience. And when Burke entered the username and password in the little box, the service generated a list not only of that station’s feeds, but also the feeds of the streaming service’s other customers, including Fox News. From there, he only had to click a link; all the feeds, Burke says, came in the form of unencrypted URLs that anyone with a browser could freely access, as long as they knew what to type in the navigation bar. 

The government contends that Burke broke the law by using “compromised credentials”—credentials the streaming service did not issue to him, and that Fox News would not have wanted him to have. This is roughly analogous to saying that he used keys that weren’t his to unlock a door he wasn’t supposed to open. Burke argues that he can’t be expected to divine who is and isn’t “supposed” to open a door, especially when, as here, someone with a legitimate set of keys left them hanging from the doorknob, and invited any and all curious passers-by to let themselves inside and have a look around. A jury of 12 Floridians will get the privilege of deciding who has the better argument.

If this all feels pretty in the weeds, I get it. But the backstory—the contents of what Burke posted—reveals more about why the federal government seems so intent on putting him in prison. On Oct. 6, 2022, Fox News aired a predictably unhinged conversation between Tucker Carlson and Kanye West in which West, who has long struggled publicly with mental health issues, referred to the body positivity movement as “demonic” and a “genocide of the Black race”; asserted that “there’s more Black babies being aborted than born in New York City”; and claimed that Bill and Hillary Clinton had used their relationship with his ex-wife, Kim Kardashian, to try and manipulate him into promoting the COVID-19 vaccine. 

To his Fox News audience, Carlson triumphantly presented West, who’d recently donned a “White Lives Matter” shirt at Paris Fashion Week, as a courageous iconoclast, and urged viewers to “judge for yourself” whether he was “crazy” or simply misunderstood. Several days later, Vice published outtakes from the interview that made the aired portions seem downright lucid. It was a grim slurry of antisemitic tropes, racist conspiracy theories, and something about “professional actors” invading West’s home to “sexualize” his kids. Notably, Vice revealed that Fox News made the editorial decision to omit the portion in which West, while indulging Carlson’s dumbass vaccine skepticism, tells Carlson that he is, in fact, vaccinated.

More behind-the-scenes footage surfaced in April, around the time Fox News fired Carlson after agreeing to pay $787 million to settle a defamation lawsuit related to his post-election howling about the world-historic threat of nonexistent voter fraud. In the weeks that followed, the left-leaning watchdog Media Matters For America posted several clips of Carlson that confirm the host’s reputation as a doltish, leering creep—which, coincidentally, was also the subject of then-pending litigation. In one off-air exchange, he describes an unidentified person’s girlfriend as “yummy”; in another, he opines that Fox News’ streaming service, Fox Nation, “sucks.” Broken clocks, et cetera.

This was all very embarrassing for both Carlson and the network, but the footage’s provenance remained a mystery. A month later, however, the Tampa Bay Times reported that federal prosecutors in Florida were looking into an alleged “hack” of Fox News related to the clips Vice and MMFA published—a timeline that suggests that whatever footage Burke ostensibly took from the unidentified sports league mentioned in the indictment was not what triggered the investigation. Around the same time, the FBI searched Burke’s Tampa home and seized hard drives, iPhones, and other computer equipment; according to the indictment, their contents helped confirm that Burke was the source of the clips.

Burke, to be clear, has never claimed otherwise. Rather, he says that he is a journalist doing journalism, and is as such entitled to the robust protections of the First Amendment. “What the prosecutor has called ‘compromised’ credentials was nothing more than user IDs and passwords that were shared in the open on public websites, and which were generally published by the owners of these credentials,” his lawyers said after his arrest. Over the years, Burke earned a reputation as something of a wizard with video, especially video that would otherwise be too cumbersome to present to readers in an easily digestible format. (You may recall a nightmare mashup from several years ago that showed dozens of dead-eyed Sinclair affiliates reading a script from their conservative media overlords that decried the publication of “biased and false news”; that was Burke’s handiwork, as was the revelation that former Notre Dame football player Manti Te'o’s dead girlfriend did not exist.) As his lawyers put it, Burke’s record of combing the internet for newsworthy information is not evidence of criminality, but proof that he is very good at his job.

A persistent challenge with traditional legal journalism is its focus on the basic question everyone wants answered. That being whether Burke Did It, in the sense of: Did Burke check off every box of the federal statute he is accused of violating? Much harder to answer are questions that go beyond the bare text of Title 18 of the United States Code: questions like whether it makes sense to apply this law to this particular set of facts, and, even if it does, whether punishing a particular course of conduct is worth the public resources that a prosecution entails. Strictly speaking, anyone who used a screeching dial-up connection to download “enimem.realslimshady.radiorip(clean).mp3” between 2000 and 2003 is guilty of a crime. The reason nobody I attended middle school with went to prison for copyright law violations is that prosecutors quite sensibly decided their time was better spent caring about anything else. 

To make the point a little less abstract: The indictment describes one of Burke’s “unauthorized disclosures” as a clip from September 2022 in which a “show host” expresses off-air concern about a hurricane’s impact on his Florida home, along with a “false and misleading caption” supplied by Burke. The date of said “unauthorized disclosure” is listed as April 24, 2023. In the real world, on April 24, 2023, Burke tweeted a seven-second clip of Carlson, sitting at his desk looking at his phone, yelping, “Damn, that was—I think that we’re fucked, right?” Burke’s caption: “exclusive video of Tucker Carlson learning he’s been fired.” What I am saying here is that one of Burke’s alleged federal crimes is literally a low-stakes Twitter joke.

The U.S. attorney for the Middle District of Florida, the office prosecuting this case, is Roger Handberg, who spent two decades in the office before Attorney General Merrick Garland tapped him to lead it on an interim basis in December 2021. (President Joe Biden formally nominated Handberg in 2022, and the Senate confirmed him by voice vote.) Handberg does not have a reputation as a partisan hack; to date, his most notable prosecution is probably that of Lou Pearlman, the former manager for the Backstreet Boys and *NSYNC who was convicted of running a Ponzi scheme in 2008 and sentenced to 25 years in prison. Otherwise, Handberg is pretty standard as far as prosecutors go, which is to say that he’s an older white guy who attended Harvard Law School and appears comfortable wearing a suit.

More troubling for Burke is the Department of Justice’s preoccupation with reestablishing its rule-of-law bona fides after the Trump administration’s cartoonish abuses of power. Under Garland’s leadership, DOJ has bent over backward to avoid any appearance of favoritism or impropriety, sometimes to a baffling and self-defeating extent. In January 2023, when he raised eyebrows by tapping a Trump DOJ lawyer to investigate Biden’s alleged mishandling of classified documents, Garland explained that he did not maintain “different rules for Democrats or Republicans.” It is not difficult to imagine an institution straining to cast itself as independent choosing to pay a little more attention to a complaint from Fox News, no matter how inconsequential the substance, simply because Fox News is doing the complaining. Among a certain tranche of lawyers, there is honor in conceiving of oneself as someone who goes after everyone who breaks the law, whether they sought to murder the vice president on Jan. 6 or digitally snooped around the talk show set of a racist celebrity multimillionaire. 

I am speculating a little bit here, but not much. In 2022, DOJ overhauled its guidelines for investigating journalists, following revelations that Trump’s Department of Justice had seized phone records and emails of journalists at CNN, The Washington Post, and The New York Times. Generally, these regulations require prosecutors to obtain approval from DOJ leadership before indicting reporters, and limit prosecutors’ ability to subject them to subpoenas and search warrants. Exactly how high up the chain a prosecutor must go depends, among other things, upon whether the person being investigated is indeed a journalist, and whether they were acting in that capacity when they allegedly committed their alleged crimes.

These, of course, are judgment calls, and the regulations are very specific about who gets to make them. In “close or novel” cases, a person’s status as a “member of the news media” is determined by the Assistant Attorney General for the Criminal Division. And if there is “genuine uncertainty” about whether a “member of the news media” was “acting within the scope of newsgathering,” the Attorney General is responsible for resolving it. Put differently, Burke probably doesn’t get indicted here without sign-off from people at the highest levels of the Department of Justice, and maybe from Garland himself.

As it happens, we don’t need to look far back to illustrate how easily this could have gone the other way. In 2019, Special Counsel Robert Mueller wrapped his investigation of Russian election interference without charging anyone involved with anything worth mentioning. Three years later, however, an updated version of Mueller’s report revealed that he’d considered charging Donald Trump Jr. with intentionally accessing a protected computer without authorization—one of the same charges Burke faces—after Trump Jr. accessed an anti-his-dad website using a password supplied by WikiLeaks via Twitter DM. Yet Mueller decided not to proceed; since WikiLeaks had also tweeted the password, he wrote, “anyone following WikiLeaks could have gotten the same preview of the website that Trump Jr. did,” which would make it more “difficult to prove” that he had committed a crime. 

This is not to say that what Burke did is exactly like what Trump Jr. did, or that the disposition of Trump Jr.’s case proves Burke’s definite innocence or irrefutable guilt. It is merely to reiterate that charging Burke, like charging anyone, is a choice. A prosecutor contemplating a fight with the adult son of the President of the United States decided to pass; a prosecutor staring down the guy who made Fox News upset decided it was important to forge ahead. And all up the line, important people agreed.

Perhaps the most troubling aspect of Burke’s case is the existential questions it raises about who is and isn’t a “journalist.” Again, DOJ ostensibly maintains a high bar for charging journalists with crimes, but as always, the law provides for a considerable amount of wiggle room. In court filings, prosecutors have suggested that Burke is not entitled to special treatment because he is not a “member of the news media” in the first place. Although he “at one time may have been a professional journalist,” they write, they have been unable to find “any evidence that Burke has regularly published under his own byline after January 1, 2021, as a salaried employee of, or independent contractor for” any media outlet.

Publishing “regularly” under a “byline,” of course, is getting trickier every week; a fresh round of mass layoffs is seemingly always being announced by a different media outlet that may or may not be around after its next quarterly report. (Vice, which ran the Carlson/West story, announced plans to shut down its website in late February.) Since 2005, some 43,000 newspaper jobs have disappeared, driven by dwindling subscription numbers and dwindling-even-faster ad sales. By the end of this year, a third of U.S. newspapers that existed twenty years ago will have closed down for good. More than 200 counties have no local news outlet, and another 228 are at risk of losing the only one they have left. 

Journalism, despite the haters’ fondest wishes, is not dead. But it is inarguably in dire straits, and people with the skills to report news and the desire to do so are scrambling to find new sustainable ways of doing that work. (Collective ownership and nonprofit sponsorship, to take two randomly selected examples.) Many journalists once employed by legacy publications have opted to work for themselves, and Burke, who also works as a media consultant for places like HBO and ESPN, is among them. In a diffuse media landscape shifting this rapidly, the simplest way to define a journalist is by reference to what they do, not whether they receive a W-2 at their enterprise email account administered by a newspaper of record.

The fractured and fracturing state of journalism is wonderful news for powerful people, who, generally speaking, do not like journalists reporting on the myriad vile things they do. By any objective standard, that is what Burke did here. From his home in Florida, he managed to expose one of the highest-profile pundits at the country’s most-watched cable news network as a cynical, duplicitous trafficker in pseudoscientific horseshit—and, at the same time, as the sort of a bog-standard dunce who asks his makeup artist if “pillow fights ever break out” in the women’s bathroom. It’s easy to see why that host’s employer might rather keep his idiocy under wraps; it’s much more difficult to see how revealing it constitutes a crime. 

The government’s choice to prosecute Burke for doing what journalists do reflects an alarmingly sclerotic conception of what it means to do that work. It’s one that has serious implications for the future of an industry already in turmoil. The digital age will yield more Tim Burkes—people who have the skill to track down newsworthy information in the dustiest corners of the internet, and the opportunity to share it in order to better inform the public. The more reason they have to fear FBI agents knocking on their door, the likelier they are to stop, sigh, and close the browser window instead.