“This nation must end this culture of leaks,” Attorney General Jeff Sessions announced on Friday — seemingly unaware that government officials have used leaks to undermine their political rivals at least since Alexander Hamilton deployed similar tactics against Thomas Jefferson. Sessions added that the press “cannot place lives at risk with impunity,” and that the Justice Department is currently reviewing its policy governing subpoenas targeting members of the media.
AG Jeff Sessions, citing leaks, says he's "reviewing policies" for subpoenaing the press. "They cannot place lives at risk with impunity." pic.twitter.com/U35g1QankV
— NBC News (@NBCNews) August 4, 2017
Sessions’ announcement follows a statement by Donald Trump calling upon the attorney general to crack down on leakers, as well as a critical tweet.
Attorney General Jeff Sessions has taken a VERY weak position on Hillary Clinton crimes (where are E-mails & DNC server) & Intel leakers!
— Donald J. Trump (@realDonaldTrump) July 25, 2017
Though it is unclear how, specifically, the Justice Department will change its policy governing media subpoenas, the current rules give Sessions a lot of leeway to make life hell for many reporters. Although DOJ rules do offer some protections against rogue prosecutors who pay too little respect to the freedom of the press, they were not designed to prevent the attorney general himself from targeting journalists.
Current rules provides that the Justice Department typically may only subpoena non-consenting journalists “after authorization by the Attorney General, or by another senior official.” The rules also require DOJ to subpoena journalists only as a last resort, and only after “negotiations with the affected member of the news media have been pursued and appropriate notice to the affected member of the news media has been provided.” Nevertheless, many of these limitations can also be overcome if “the Attorney General determines that, for compelling reasons, such negotiations or notice would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm.”
The premise of these rules, in other words, is that digging into reporters’ sources is such an extraordinary act that it must be reviewed at the highest levels within the Justice Department. And, because the attorney general and his top subordinates are very busy people, most prosecutors will be reluctant to bring a potential press subpoena to their attention.
But what happens if the attorney general himself, acting under instructions from the president, decides to make harassment of the media a high priority? The rules do not provide much of a safeguard against this sort of harassment, as the person at the apex of the Justice Department has broad authority to authorize subpoenas targeting the press.
It should be noted that federal law offers few protections to journalists, at least as compared to most states. Forty-nine of the fifty states adopted a “journalists’ privilege,” which allows reporters to resist certain efforts to compel them to reveal information. But neither Congress nor the federal courts have extended similar protections to journalists targeted by federal investigators.
Indeed, in 2005, a woman employed as a reporter by the New York Times spent 85 days in jail due to her refusal to testify regarding her conversations with a source. Judith Miller, a somewhat notorious figure famous for her credulous reporting on the Iraq War, refused to testify regarding conversations she had with vice presidential chief of staff Lewis “Scotter” Libby — though she relented after Libby himself granted her permission to do so. Libby was eventually convicted of several criminal charges.
There may be, however, one important limit on Sessions’ ability to harass journalists. Though the Supreme Court rejected a broad journalists’ privilege in Branzburg v. Hayes, it did conclude that “grand jury investigations, if instituted or conducted other than in good faith” may be forbidden by the First Amendment.
“Official harassment of the press undertaken not for purposes of law enforcement, but to disrupt a reporter’s relationship with his news sources,” Justice Byron White wrote, “would have no justification.”