This article is cross-posted from American Prospect. Dorothy Samuels is a Fellow at the Brennan Center for Justice.
After President Trump tweeted that his Attorney General is “VERY weak” on pursuing “Intel leakers,” Jeff Sessions announced new investigations into how journalists gain access to secret information and a possible revamp of existing guidelines designed to protect reporters against government interference in newsgathering. As the leaks continue, the Justice Department seems primed to aggressively pursue its crackdown.
Instead of emulating the best actions of the Obama Justice Department, such as enforcing voting rights rather than demolishing them, Attorney General Jeff Sessions appears determined to mirror the worst: the over-zealous pursuit of leak cases that stained the tenure of Eric Holder, President Obama’s first Attorney General, chilling national security reporting. But Sessions may well outdo even Holder in going after unauthorized disclosures and reporters.
At an early August news conference, Sessions cited an “unprecedented rise in leaks” and related criminal referrals by intelligence agencies during the first six months of the Trump administration. He said that the Justice Department already has initiated an extensive new round of leak investigations.
Since Sessions declined to provide details about the number and nature of these cases, it is unknown—for now—whether the list includes revelations connected to the current Russia probe or other additional areas that may prove or have proven embarrassing to the White House. Also unclear is whether those leaks have actually undermined national security as claimed and whether a full-scale investigation really is warranted.
What did come across loud and clear was that the nation’s chief law enforcement officer, like his boss, is no great fan of the news media in general or individual reporters and editors in particular. Piercing “Trump World” secrecy and holding the aberrant commander-in-chief and his minions accountable is a tough job and Sessions appears intent on making that job even harder.
After giving lip-service to respecting “the important role that the press plays,” Sessions resorted to Trump-style demonization warning that journalists “cannot put lives at risk with impunity.” Martin Baron, editor of The Washington Post, promptly pushed back against that framing. “Sessions talked about ‘putting lives at risk,’” Baron said. “We haven’t done that. What we’ve done is reveal the truth about what administration officials have said and done. In many instances, our factual stories have contradicted false statements they’ve made.”
Mathew Purdy, a deputy managing editor of The New York Times, also objected to Sessions’s remarks. “There’s a distinction between revelations that make the government uncomfortable and revelations that put lives at risk,” he said. “We have not published information that endangers lives.”
The immediate concern—and it is a big one—is that Sessions’s crackdown on leakers and whistleblowers will hamper the work of investigative reporters and take aim at freedom of the press at a fraught moment when exposing what the nation’s aberrant, norm-defying, and mendacious president is up to is a democratic necessity.
Which brings us back to Eric Holder, who came in for heavy criticism for a string of atrocities against the First Amendment and the news media, including helping to secure a federal appellate court decision finding no grounds exist in constitutional or common law that shields a reporter from revealing her sources, a wrong-headed and highly damaging precedent. But Holder, with Obama’s concurrence, decided to polish his legacy before stepping down in 2015. He tightened internal Justice Department guidelines for trying to obtain records or testimony from reporters during leak probes, a reform that the department crafted with input from news media representatives.
Holder’s revisions were vetted by his own staff and by other officials in the Justice Department and the FBI, to strike a balance between allowing the government to protect genuine national security interests and enforce laws and strengthening safeguards that reporters and news organizations need to cultivate sources and perform their job of informing the public and holding powerful officials accountable.
Sessions’s decision to open up the Holder-era guidelines for review signals trouble. Despite the number of leaks streaming out of the administration, fiddling with the guidelines now would raise suspicions that the department plans to gear up for a crackdown on press freedoms. The department could substantially weaken the rules to make it easier to subpoena reporters and haul them before grand juries— and even jail them if they won’t reveal or confirm the identity of a confidential source.
This is no minor matter. The “ability to cultivate confidential sources is one of the building blocks of journalism,” as the late and great New York Times journalist, David Carr, observed. “Without it, the media world would run on press releases.”
Sessions’s deputy, Rod Rosenstein, who will conduct the guidelines review, suggests journalists have nothing to fear. Yet in an interview with Chris Wallace on Fox News, he seemed amenable to lowering the “procedural barriers” in the guidelines, that is, scaling back the current protections for reporters that some federal officials complain can delay investigations. That’s an ominous sign. (Rosenstein’s meeting with news media representatives to discuss the possible changes originally slated for mid-August, has been rescheduled for September.)
Sessions would better serve the country by directing his reform energies elsewhere. One area ripe for change is official Washington’s farcical practice of over-classification of documents related to national security matters and other types of government information.
Tampering with journalists’ ability to enlist and protect sources would exact a tremendous cost, for leakers and whistleblowers. It would also put at risk the critical reporting about the Trump administration that the public has come to rely on and appreciate. As the damaging revelations multiply, Trump’s popularity could dip even further, and any weakening of protections for reporters will look like payback for months of hard-hitting journalism.
The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.