Which executive of the Justice Department should we believe? Do we trust Attorney General Jeff Sessions when he testily announces that he is reviewing the rules that restrict when federal investigators can issue subpoenas to the news media? Or do we trust Deputy Attorney General Rod Rosenstein when he blithely says, two days later, that "… we’re after the leakers, not the journalists."
For now, we’ll withhold our trust. Given the fury of a White House frantic to silence reporting on topics that embarrass the Trump administration, Americans who rely on a free press should be angry that Justice’s top two officials are playing bad cop-good cop with crucial First Amendment principles. President Donald Trump fulminates bitterly against every story that puts him in an unwanted light. He has denounced the "fake news media" as "the enemy of the people." Senior White House adviser Stephen Bannon has said, "The media should keep its mouth shut."
Fortunately, the First Amendment says otherwise, and under this administration, the news media have done what they did under previous ones: Journalists have tried to find out as much as they can about what government officials are doing and make sense of it for the public. If Trump hoped to intimidate reporters and their editors, he has failed.
But there are solid grounds for worry about the administration’s intentions. In February, Trump said he had told Sessions to focus on leaks — an example of the sort of direct involvement in prosecutorial matters that presidents generally avoid. Trump has raged against the embarrassing disclosures and disparaged Sessions as "very weak" in pursuing leakers.
On Friday, Sessions appeared to respond to Trump’s pressure by announcing that under his leadership, Justice has tripled the number of leak investigations, compared with the pace of Barack Obama’s Justice Department. "I strongly agree with the president and condemn in the strongest terms the staggering number of leaks undermining the ability of our government to protect our country," Sessions said.
More disturbing was Sessions’ announcement that he has initiated the review of his department’s rules on subpoenaing reporters in such probes. Journalists, he declared, "cannot place lives at risk with impunity." He gave no examples, though, of actual news organizations endangering lives.
Maybe this is all for show — Sessions trying to appease his ill-tempered boss by echoing his complaints. Sessions’ deputy, Rosenstein, struck his calmer note Sunday when he said the department isn’t going after reporters in its leak investigations. "We don’t prosecute journalists for doing their jobs," he said. "The attorney general has been very clear that we’re after the leakers, not the journalists."
Wrong. If the attorney general has been clear about anything, it’s that he may try to muzzle journalists who tell American citizens what their government is up to. The federal government legitimately classifies a lot of material, much of it having to do with law enforcement, defense, foreign policy and other matters that require some secrecy. As Rosenstein said in announcing charges in one case, "People who are trusted with classified information and pledge to protect it must be held accountable when they violate that obligation."
Some federal employees are willing to take that risk when they turn over information that exposes corruption, abuses or maladministration. The news media report on such leaks when journalists see some public interest in doing so. But while leakers may be breaking the law to reveal classified material, journalists are generally within their legal rights to report such revelations. "The government has never charged a reporter for publishing restricted information," The New York Times reports.
Those who detest leaks may hope to deter such reporting, though, by subpoenaing reporters to divulge the identity of confidential sources. Forty-nine states and the District of Columbia have laws granting journalists some protection against being required to testify in such instances, but the federal government doesn’t. Barack Obama’s attorney general, Eric Holder, alarmed journalists by getting phone records from Associated Press reporters and emails from a Fox News reporter. But after a blowback from Congress and the news media, Holder tightened his department’s own rules on such subpoenas, essentially making them a last resort.
Sessions has no reason to loosen those restrictions and drag journalists into court. The job of preventing leaks belongs to the federal government, which has plenty of existing tools to do so. If the Trump administration can’t keep its own secrets, it shouldn’t expect the news media to do that job.
— Chicago Tribune