Jeff Sessions’ Statement About Leak Investigations Raises Deeply Disturbing Issues For Journalists, Transparency
Attorney General Jeff Sessions’ announcement today that the Department of Justice has tripled its number of “active leak investigations” in the past six months, and that DOJ is “reviewing policies affecting media subpoenas” raised serious red flags for journalists, their sources, and proponents of transparency.
The Obama administration was more aggressive in prosecuting leaks than any White House in modern times, bringing three times as many cases under the Espionage Act of 1912 than all previous administrations combined. Sessions’ comments today reveal that the Trump administration has set itself on a course to far oustrip the Obama administration in this regard.
“The overzealous investigation and prosecution of whistleblowers bringing crucial information to the press, and thus to public light, is a serious risk in any administration,” said First Amendment Coalition Executive Director David Snyder. “With Trump, who has labeled the press ‘the enemy of the American people,’ this threat to transparency is particularly grave.”
Sessions also raised the specter that the Justice Department will roll back internal DOJ protections against the overzealous use of government subpoenas against journalists, saying DOJ is “reviewing policies affecting media subpoenas.”
Current DOJ policies, substantially revamped in 2015 under then-Attorney General Eric Holder, recognize the critical role that journalists play in maintaining the health of our democracy, by (among other things) generally prohibiting the use of secret subpoenas–i.e., subpoenas for call records and the like that are not served on their recipients (so that they can contest the subpoena or challenge it in court).
A rollback of this rule would be a serious blow to the press’ ability to function without improper government intrusion. It could allow the government to secretly collect journalist records — as the Obama Administration did in 2012, secretly subpoenaing and seizing phone and email records from numerous Associated Press reporters.
Perhaps most disturbing, Sessions said today that while journalists will receive “respect” from the Trump administration, such respect is “not unlimited,” and he warned that journalists “cannot place lives at risk with impunity.” The comments suggest that the Trump administration may attempt to prosecute journalists under the vaguely worded Espionage Act of 1912 for the publication of classified information — something that has never been done successfully, and has only been attempted once, more than 80 years ago.
“Among other defects, the Espionage Act provides no public interest defense to a leaker, and contains no requirement that the government prove the information as properly and appropriately classified in the first place,” said David Greene, Civil Liberties Director at EFF. “Moreover, because a great number of leaks are either encouraged or at least tolerated by the U.S. government when they serve the government’s purpose, the Espionage Act provides a mechanism for the selective punishment of government critics rather than furthering the general interests of preserving classified information.”
The First Amendment would likely bar any such prosecution: the U.S. Supreme Court has repeatedly held that journalists cannot be held liable for the publication of information of public interest that was obtained unlawfully, so long as the journalists themselves broke no laws in receiving the information. However, this law has never been applied in the context of an Espionage Act prosecution.
First Amendment Coalition
Civil Liberties Director
Electronic Frontier Foundation