Journalists Face Greater Legal Peril as US Justice Department Goes After Leakers

Posted on August 9, 2017

According to a new article from The Intercept, the US Department of Justice has announced that, as part of their redoubled effort to combat unauthorized disclosures, it may issue subpoenas to compel journalists to identify sources for their reporting. In an announcement last week, Attorney General Jeff Sessions stated that the Justice Department is currently considering revising internal procedures which place limits on the extent of legal action that the department can take against journalists, in order to better facilitate the prosecution of sources leaking documents and statements to the press. 

This permissive new policy in leak cases marks a considerably more aggressive attack on the operation of a free press than that waged even under the administration of President Barack Obama, whose Justice Department issued a subpoena, and subsequently threatened prosecution, against distinguished New York Times reporter James Risen as part of an anti-whistleblower campaign which saw more prosecutions under the Espionage Act than all previous administrations combined. Although Deputy Attorney General Rod Rosenstein later issued a reassurance suggesting that the the Trump Justice Department would not explicitly charge journalists with crimes “for doing their jobs,” he did not dismiss the possibility of pursuing charges against journalists outright.

Besides the fact that the Justice Department’s assessment of what constitutes reporters “doing their jobs” and what runs afoul of federal law will undoubtedly be highly subjective, the looming specter of a federal subpoena is more than menacing enough to have an equally acute chilling effect on the press. A journalist with even a modicum of professional integrity who faces a subpoena to force them to reveal the source of their reporting would almost certainly resist the court order and preserve the source’s anonymity. While a subpoena is not itself a criminal charge, as the rebuke of a subpoena constitutes contempt of court, any journalist acting in accordance with professional ethics would inherently incur criminal penalty as a function of doing their job.

The expressed willingness of the Justice Department to go to these lengths, pushing journalists to the brink in exactly this manner, is only the latest and most alarming example of the Trump administration’s attempts to undermine and delegitimize the nation’s free press. While the government has a natural interest in prosecuting whistleblowers themselves for breaching the secrecy provisions of their government contracts, the effective targeting of journalists with legal action verges on press suppression even more dangerously than any policy carried out under President Obama, and perhaps more so than that of any president in American history. 

You can read the full report from The Intercept here

Jonathan Terrasi has been a Research Assistant with the Chicago Committee to Defend the Bill of Rights since January 2017. His interests include computer security, encryption, history, and philosophy. In his writing, he regularly covers topics on current affairs and political developments, as well as technical analyses and guides on security issues, published on his blog, Cymatic Scanning, and Linux Insider.