Trump administration reconsiders legal protections for journalists – August 2017

Washington, DC

Attorney General Jeff Sessions announced that the Department of Justice would review its policy concerning “media subpoenas,” raising concerns about freedom of the press and legal protections for journalists in the era of President Trump.

Key Figures

Jeff Sessions is the 84th Attorney General of the United States. Appointed by President Donald Trump, Sessions previously served as a United States Senator from Alabama from 1997 to 2017.

Further details

In a news conference on August 4, 2017, in Washington, DC, Attorney General Jeff Sessions announced that the US Department of Justice was “reviewing policies affecting media subpoenas,” in an effort to reduce leaks from within President Trump’s administration. Sessions’ comments sparked concerns that reporters may be compelled to reveal the identity of government sources who provide classified or other sensitive information. During the news conference, Sessions said, “We respect the important role that the press plays and will give them respect, but it is not unlimited. They cannot place lives at risk with impunity,” reports The Washington Post.

Additionally, Sessions announced that the Department of Justice had tripled the number of leak investigations since President Trump took office, reports Newsweek. Two days after Sessions’ press conference, Deputy Attorney General Rod Rosenstein told Fox News, “We don’t prosecute journalists for doing their jobs.” He continued, “the attorney general has been very clear that we’re after the leakers, not the journalists.”

Sessions’ remarks seemed to waver from the Justice Department’s policy, established in 2015, that reporters may only be subpoenaed for information “after all reasonable alternative attempts have been made to obtain the information from alternative sources,” reports the Los Angeles Times. These existing guidelines specify that issuing subpoenas or seeking search warrants for news organizations should be considered “extraordinary measures, not standard investigatory practices.”

Responding to Sessions’ news conference, the director of the Freedom of Press Foundation said, “Journalists cannot do their job without sources willing to talk with them — sources that often put their livelihoods at risk in order to get information to the public. And the coming leak crackdown has the potential to upend accountability journalism in the Trump era,” reports Newsweek.

On August 9, the editorial board of the Chicago Tribune warned Sessions to “Back off.” The editorial criticized any policy revision that would place journalists in legal jeopardy for publishing leaked material. “Forty-nine states and the District of Columbia have laws granting journalists some protection against being required to testify [regarding a source’s identity], but the federal government doesn’t,” according to the Tribune.

Sessions’ press conference took place in the wake of numerous leaks concerning the Trump campaign’s contact with Russian government officials and a subsequent investigation into the matter by the Federal Bureau of Investigation. On Twitter, the President called the leaks “illegal,” and said they “must stop.”

Ben Wizner, director of the American Civil Liberties Union’s (ACLU) Speech, Privacy, and Technology Project reacted to Sessions’ announcement by saying, “Every American should be concerned about the Trump administration’s threat to step up its efforts against whistleblowers and journalists. A crackdown on leaks is a crackdown on the free press and on democracy as a whole.” He continued, “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. 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?”

The Post notes that in 2007, Vice President Mike Pence, then serving in the U.S. House of Representatives, proposed legislation to protect journalists from being forced to disclose their sources. The “Free Flow of Information Act” was inspired by the case of Judith Miller, a former reporter for The New York Times who refused to disclose a government source who had leaked the name of a Central Intelligence Agency operative named Valerie Plame. “As a conservative who believes in limited government, I believe the only check on government power in real time is a free and independent press,” Pence said about his bill, according to Fox News. Pence’s legislation, which was endorsed by the society of professional journalists, was never passed into law, reports the Post.

External References:

In tweet storm, Trump decries ‘illegal leaks’ and asserts ‘all agree’ he has complete power to pardon, The Washington Post

Jeff Sessions might subpoena journalists to reveal leakers. Mike Pence once fought against that, The Washington Post

Trump administration threatens freedom of the press in new leaks crackdown, Newsweek

Press freedom and the war on leaks: Back off, Mr. Sessions, The Chicago Tribune

Don’t make the press collateral damage in a war on leaks, Los Angeles Times

ACLU comment on Justice Department announcement on leak investigations, ACLU

Prepared by Will Haskell ’18

September 14, 2017