BY PETER SCHEER–Attorney General Eric Holder’s relationship with the press over the last six years has been contentious, to put it mildly. Holder and his lieutenants in the Justice Department have been zealous in their pursuit of suspected leakers of national security information–and those investigations inevitably led to battles with journalists over information about their confidential sources.
But as Holder gets ready to depart government–his successor, Loretta Lynch, has been nominated and is awaiting confirmation—he has been taking steps to leave behind a different legacy. While these steps won’t win him awards from free press organizations, they are nonetheless important, reflecting a real shift in federal government policy vis a vis the media.
The most conspicuous change was the decision not to try to force New York Times reporter James Risen to testify about his confidential sources for reporting on a secret US effort during the Clinton years to slow Iran’s nuclear program. Federal prosecutors had pulled out all stops in trying to compel Risen’s testimony, ultimately prevailing in the federal court of appeals.
In briefs to that court (and also to the Supreme Court, which declined to review Risen’s case), the government abandoned its usual caution in these matters, arguing that the first amendment was irrelevant to enforcement of a subpoena for Risen’s testimony, imposing no limitation whatever on its power and discretion to force journalists to out their sources.
On the eve of trial of former CIA officer Jeffrey Sterling, who is charged with leaking classified information about the Iran operation, and against whom the government wanted Risen to testify, Holder changed his mind. He reportedly told prosecutors that he did not want to preside over the jailing of journalists who, in protecting a confidential source, were doing their job.
Days later the Justice Department announced revisions to internal guidelines that regulate prosecutors’ efforts to obtain information from journalists. In the absence of a federal shield law or reporter’s privilege (based on the first amendment, common law or federal judicial rules), the voluntary DOJ guidelines, which date back to the 1970s, provide the most meaningful protection at the federal level for journalists’ confidential information and sources.
The revisions under Holder’s watch plug a number of loopholes that contributed to instances of government overreach in recent years. They also remove qualifying language that raised doubt about the kinds of journalists, and journalistic activities, that qualify for protection under the guidelines. The effect of the change is to expand protection.
Holder is often faulted for being overly aggressive in investigating leaks of classified information. Critics point out that he has prosecuted eight leak cases–more than any previous administration. But that’s a bit misleading because a number of those cases were launched during the Bush years; Holder simply chose not to abort them. In any case, the investigation of security leaks is not an illegitimate prosecutorial priority. Nor is it in the news media’s interest to curtail prosecutions of leakers, as I’ve argued before.
Holder’s failing was not in pursuing leakers per se, but in his use of controversial–and arguably illegal–measures to extract evidence from unwitting journalists for use in cases against leakers. These include the FBI’s gaining access to phone call records of Associated Press reporters and editors in multiple AP offices over a two-month period. Also: the government’s seizure of emails–message content as well as metadata–from the private gmail account of James Rosen, a Fox News reporter.
For these and other missteps, Holder will never be remembered fondly by the journalism community. But in the final weeks of his tenure we shouldn’t discourage him from trying to burnish his image as a press-friendly AG.
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Peter Scheer, a lawyer, is FAC’s executive director. The ideas expressed here do not necessarily reflect the views o FAC’s Board of Directors.