Can Sessions legally demand that the press betray their sources?

The leaky Trump administration is threatening journalists with jail if they don’t snitch.

This article first appeared on the Just Security site.

At a press conference on August 4, Attorney General Jeff Sessions condemned “in the strongest possible terms the staggering number of leaks” of classified national security information and announced the Department of Justice had markedly increased leak investigations and prosecutions.

To the intelligence community, Session pointedly remarked, “The Department of Justice is open for business.” To the press, Sessions announced the DOJ was reviewing its policies limiting media subpoenas.

Leaking classified information is so commonplace in Washington that a wide range of commentators have described it as a “routine” method of communication about government.

Similarly, outrage about leaks is also a regular Washington ritual.

can-sessions-legally-demand-that-the-press-betray-their-sources photo 1 Attorney General Jeff Sessions testifies at a US Senate Select Committee on Intelligence hearing on Capitol Hill in Washington, DC, June 13, 2017. SAUL LOEB/AFP/Getty

President George W. Bush, for example, was furious about a series of news stories revealing secret government actions in the war on terror. These stories provoked the Bush administration to begin an intense internal crackdown on leaks.

His Attorney General Alberto Gonzales also fired a warning shot at the press, claiming the government has the authority to punish the press for publishing classified information.

Although Sessions was not as direct as Gonzales, he did state cryptically that respect for the press “is not unlimited. They cannot place lives at risk with impunity.”

Deputy Attorney General Rod Rosenstein, appearing on Fox News Sunday on August 6, sought to clarify Sessions’s remarks. While the DOJ will focus on leakers, not reporters, he left open the possibility that there might be circumstances where publication was a crime.

Any effort by Sessions to punish the press for publication of classified information will run up against a broad consensus among prior congressional and executive branch officials that the general espionage statutes do not apply to press publication.

Moreover, well-established Supreme Court precedent protects the publication of truthful information that is lawfully acquired. Press subpoenas, however, may be an indirect way of thwarting the publication of leaks.

Sessions’s most significant announcement was that the DOJ, in response to comments by career investigators and prosecutors “about how to most successfully investigate and prosecute” leak cases, was reviewing its policies limiting media subpoenas.

Rosenstein on August 6 revealed that some prosecutors regard the DOJ’s procedures for approving media subpoenas to be an impediment to investigations.

This announcement comes as no surprise to those who are familiar with Sessions’s views on reporter-source relations. As a Senator, Sessions was one of the most ardent opponents of proposals to enact a national shield law which would have provided federal protection of journalist-source relationships. (Thirty eight states have statutes providing judicial review of subpoenas directed at reporters.)

Sessions claimed that a shield law would offer protection to those who use the media to illegally leak classified information. During his recent confirmation hearings, Sessions refused to rule out subpoenaing journalists in leak investigations, stating that confidential source relationships “could be a mechanism through which unlawful intelligence is obtained” by the press.

What is more, the views of Sessions’s boss go well beyond the typical rhetoric about finding government insiders who leak.

President Trump has challenged the use of anonymous sources by journalists, saying “They shouldn’t be allowed to use sources unless they use somebody’s name” and claiming that the use of anonymous sources allows the “fake news” to make up stories unfavorable to him.

He has also frequently decried “leaks” to the press that involve neither classified information nor any illegal activity.

More frequent use of subpoenas aimed at the press would significantly alter long-standing DOJ policy.

For decades, the DOJ’s policy in leak investigations has been to focus on the “universe of potential leakers,” rather than the press. This is a significant policy judgment that former Attorney General Janet Reno told Congress in 2000 “takes into account concerns that a free press not be unduly chilled in the exercise of its newsgathering functions.”

An exception was Special Prosecutor Patrick Fitzgerald’s inquiry into the leaking of Valerie Plame’s status as a CIA employee. As a special prosecutor, Fitzgerald was not obligated to submit his requests for subpoenas through normal DOJ channels and he subpoenaed several journalists, most notably New York Times reporter Judith Miller who testified after spending 85 days in jail in 2005.

This questioning was superfluous, as investigators knew the identity of the leaker even before Fitzgerald’s appointment.

DOJ guidelines, first issued in 1970 and revised in 2013, state that subpoenas directed at reporters are “extraordinary measures” and must generally be approved by the Attorney General. Courts have held that the guidelines “are just that—touchstones to assist the DOJ in its exercise of prosecutorial discretion—and confer no substantive rights or protections” that may be privately enforced.

If Attorney General Sessions chooses to authorize subpoenas, there will be great outcry by press institutions, but there are limited legal remedies for the press in fighting a subpoena issued as part of a legitimate investigation.

Because there is no federal shield law, reporters challenging a federal subpoena must rely on a First Amendment-based reporter’s privilege, which varies markedly according to the case law in the particular federal jurisdiction.

Unfortunately, the law in Washington, DC, Virginia and Maryland, the likely settings of national security leak investigations, offers little protection for journalists. In the District of Columbia, the Court of Appeals ruled in 2005 that Judith Miller did not have a First Amendment-based privilege to refuse to testify before a grand jury investigating the leaking of Plame’s CIA employment.

Miller’s attorneys argued that Justice Byron White’s opinion for the Supreme Court in Branzburg v. Hayes , in which the Court rejected a First Amendment-based reporter’s privilege by a 5-4 vote, was a plurality opinion and the crucial opinion was Justice Lewis Powell’s concurring opinion which arguably implied some form of reporter’s privilege should be recognized.

The Court of Appeals, however, characterized White’s majority opinion as “authoritative precedent” which in no uncertain terms rejected a reporter’s privilege. Justice Powell’s concurring opinion, the appellate court stated, was not “intended to elevate the journalistic class above the rest.”

Similarly, the protections for journalists in Virginia, home of the CIA, and Maryland, home of the NSA, are weak, as James Risen of the New York Times discovered in 2013.

According to the Obama administration, Risen received classified information about a covert operation to disrupt Iran’s nuclear program from Jeffrey Sterling, a former CIA officer who was charged with violating the Espionage Act. The government argued it was necessary to compel Risen to identify Sterling as the source of the classified information.

Risen’s attorneys relied upon Powell’s Branzburg concurring opinion, arguing for judicial recognition of a journalist’s qualified privilege. This reading of Powell’s concurring opinion was rejected by the Fourth Circuit Court of Appeals in 2013; when the Supreme Court denied certiorari in 2014, the stage was set for the most important confrontation between the press and the government since the 2005 jailing of Miller.

Yet on the eve of Sterling’s January 2015 trial, Attorney General Holder made a stunning announcement. Despite having won the legal authority to question Risen about his sources, the government would not do so.

Holder was operating on an old-school rule of American political life, it is not wise to pick fights with people who buy ink by the barrel.

But we are in a new political environment where Trump and his chief strategist Stephen Bannon relish fights with mainstream journalists whom Trump calls “among the most dishonest human beings on earth” and Bannon regards as the “opposition party.”

Both Justices White and Powell acknowledged that courts would protect journalists from bad faith investigations designed to harass reporters. Noted First Amendment litigator Floyd Abrams recently claimed that Trump’s anti-press tweets would support arguments that a press subpoena should be quashed because the government was misusing the legal system to punish journalists.

This presents an interesting question: would an otherwise valid subpoena become invalid in part because Trump has called the news media “the enemy of the people” in a series of similar statements?

Attorney General Sessions can require that criminal investigators focus on government employees who had access to the leaked information. There is no First Amendment right for a government employee to violate laws relating to the handling of classified information.

And there are a variety of digital forensics tools to identify leakers. Such tools were recently used to identify Reality Winner, a contractor for the NSA, as the leaker of a top-secret report about Russian meddling in the 2016 election.

Given those tools, one may question whether forcing a journalist to identify a source is truly “essential” to a leak investigation.

The press should not be condemned for the behavior of its sources. Stated differently, the press is not the guardian of the morals of its sources.

Forcing journalists to identify their sources, or jailing those who refuse to do so, will do little to stem the tide of leaking and will markedly compromise the independence of the press.

Declining to subpoena reporters would show that Sessions truly believes, as he told the Senate Judiciary Committee, that a free press ensures “the accountability of powerful institutions in our society.”

William E. Lee is a Professor at Grady College of Journalism and Mass Communication, University of Georgia and a coauthor of The Law of Public Communication.

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