WASHINGTON — Attorney General Jeff Sessions said that the Justice Department is “reviewing policies” having to do with issuing subpoenas to media outlets that published leaked information.
“One of the things we are doing is reviewing policies affecting media subpoenas,” Sessions said at a press conference on Friday, although he took no questions. “We respect the role that the press plays and will give them respect, but it is not unlimited. They cannot place lives at risk with impunity.”
“We must balance their role with protecting our national security and the lives of those who serve in our intelligence community, the armed forces, and all law abiding Americans.”
Sessions decried the “culture of leaking,” which has plagued every recent administration, but seems especially pronounced since President Donald Trump took office six months ago.
Just yesterday, The Washington Post published leaked transcripts of calls that Trump had with Mexican President Enrique Peña Nieto and Australian Prime Minister Malcolm Turnbull.
Sessions said that the Justice Department has increased resources devoted to leak investigations, and he said the number of ongoing probes have now tripled.
The Justice Department issued an updated set of guidelines for issuing media subpoenas in 2015. They require that, in most cases, the attorney general would have to approve subpoenas and warrants to obtain reporters’ materials, and it removed a reference to “ordinary” news gathering activities that news organizations felt was too broad in scope.
The guidelines were revised after the phone records of Associated Press reporters were seized in 2013 during an investigation of national security leaks, as well as a search warrant that was issued to Fox News’ James Rosen to obtain access to his emails. After an outcry, then-Attorney General Eric Holder formed a committee that included members of the news media to come up with a new set of policies.
Chuck Todd, the host of NBC News’ “Meet the Press,” tweeted that if “DoJ media source threat is real (I assume it’s not; just a show presser to please WH) then I look forward to ignoring that subpoena.”
If DoJ media source threat is real (I assume it's not; just a show presser to please WH) then I look forward to ignoring that subpoena
— Chuck Todd (@chucktodd) August 4, 2017
He later added that “Ill say it again: the best way to prevent leaks for ANY org? Be a leader that inspires loyalty and cut out the staff infighting….The worst way to stop leaks: threats.”
Karen Kaiser, the general counsel of the Associated Press, said that they “sincerely hope the administration continues to acknowledge and preserve the long-standing role of a free press and its importance in our democracy, and recognizes the critical balancing of interests struck in these guidelines.”
Theodore Boutrous, partner at Gibson, Dunn & Crutcher, called Sessions’ comments “disturbing.”
Boutrous said that Justice Department restraint and adhering to its guidelines have been important because the case law coming out of federal courts remains unsettled, and the uncertainty can create a “chilling effect for journalists.” Although a number of circuits have recognized a journalistic privilege, it has been much more difficult to fight off a warrant or subpoena coming from a grand jury investigation, he said.
“We have got the president publicly sicking the attorney general on journalists, and the attorney general attempting to respond,” Boutrous said. “I don’t think this is something that should be discounted. Everyone should take it very seriously.”
In 2005, Boutrous represented Matthew Cooper, the Time magazine reporter who was threatened with contempt of court for refusing to testify before a grand jury conducting the Valerie Plame leak investigation. He later did after his source freed him of his commitment of confidentiality.
First Amendment groups were quick to express concern over Sessions’ remarks.
“Our founders understood that democracy depends on an informed citizenry, and leaders can’t be trusted to disclose vital information that reflects poorly on themselves,” said Ben Wizner, director of the American Civil Liberties Union’s Speech, Privacy, and Technology Project. “These first months of the Trump administration dramatically illustrate that point. Can anyone seriously argue that our country would be better off if the public received all of its information through official channels alone?”
David Boardman, chairman of the Reporters Committee for the Freedom of the Press, said that “what the attorney general is suggesting is a dangerous threat to the freedom of the American people to know and understand what their leaders are doing, and why.”
Others also took issue with Sessions’ characterization of the publication of leaked information as “putting lives at risk.”
Bruce Brown, who is the executive director of the Reporters Committee, said that news organizations “have a long history of handling this information in a responsible way, working with government officials to evaluate potential harms, and taking steps to mitigate any damage when there is an overwhelming public interest in revealing it.”