DOJ to review news media subpoena policy

August 4, 2017 01:30

In a move that could seriously impinge on reporters’ ability to serve as watchdogs for the public, Attorney General Jeff Sessions said today that the Department of Justice will review Obama administration rules that restrict the government’s ability to subpoena journalists who receive and publish leaked classified material.
During a news conference in which he announced a crackdown on leaks that have plagued the Trump administration, Sessions said the review would be aimed at “balanc[ing] the press’s role with protecting our national security and the lives of those who serve in the intelligence community, the armed services and all law abiding Americans.” Sessions also said "We respect the important role the press plays, and we'll give them respect, but it is not unlimited."
After then-Attorney General Eric Holder’s justice department subpoenaed telephone records of the Associated Press and other news organizations in 2013, RTDNA and several other press freedom groups strongly protested. That led to a meeting between Holder, RTDNA, and other First Amendment advocates. Several months later, Holder issued a new policy that was consistent with the view of then-President Obama, who said, "Journalists should not be at legal risk for doing their jobs. Our focus must be on those who break the law."
Among other things, the Holder policy stated that subpoenas and warrants targeting reporters should be used only as a last resort, after all other investigative tools had been exhausted. Such action could only be taken with the approval of the attorney general or another senior justice department official.
The RTDNA Voice of the First Amendment Task Force is extremely concerned that Sessions’ review could lead to a dramatic roll-back of protections afforded the news media under Holder’s policy, particularly since, during his Senate confirmation hearing in January, Sessions declined to pledge that he would not jail reporters merely for doing their jobs.
“Given the open and sometimes venomous disdain President Trump and many in his administration have expressed regarding responsible journalism, it’s hard not to believe that this new review won’t lead to Draconian measures that will constrain journalists who are trying to inform the public,” said Dan Shelley, RTDNA Incoming Executive Director, who spearheads the task force.
“In the event General Sessions starts going after journalists, and not just those who leak them classified information, it will be the public that suffers because it will be much harder for them to learn what their government representatives are doing,” Shelley added.
Throughout the history of the United States, information leaked to, and then reported by, journalists have kept the government in check. Among the more notable in modern times, tips from a confidential source known as “Deep Throat” helped reporters Bob Woodward and Carl Bernstein cover the Watergate scandal. The Pentagon Papers, leaked to the New York Times by Daniel Ellsberg, revealed that the Johnson Administration had repeatedly lied to Congress and the public about the Vietnam War.
“Sometimes, information leaked to reporters by government officials and other sources is the only way corruption and other wrongdoing ever see the light of day. Responsible journalists are discriminating in the way they use that information, being very careful not to compromise national security or the safety of our government’s intelligence officers and military,” Shelley said. “Protecting the anonymity of the source is often the only way to obtain that information.”
RTDNA has issued coverage guidelines for using confidential sources, to help journalists make the most conscientious decisions possible. The group News Media for Open Government (NMOG), of which RTDNA is a member, has also issued valuable information about leaks and anonymous sources.
RTDNA will monitor the Sessions review carefully and take whatever steps necessary to defend against any attacks on responsible journalists’ Constitutionally-guaranteed duty to seek and report the truth.
RTDNA formed the Voice of the First Amendment Task Force to defend against threats to the First Amendment and news media access, and to bridge the divide between responsible journalists and those who don’t like, or don’t understand, the news media. People wishing to support RTDNA’s efforts may reach out to the task force by emailing