The Justice Department Is Reviewing Obama-Era Journalist Protections

Attorney General Jeff Sessions said on Friday that the Justice Department will "respect" the role of the press, but warned that "it is not unlimited."

Attorney General Jeff Sessions issued a harsh rebuke of leaks and the media that report them on Friday — echoing criticism levied regularly by President Trump over the past year — and signaled that the Justice Department could be changing how it deals with reporters in such cases.

Sessions announced at a news conference on Friday morning that the department is reviewing its policies for subpoenaing reporters, suggesting that Obama-era guidelines that placed limits on the practice could be rolled back.

The department will "respect the important role that the press plays," Sessions said, "but it is not unlimited."

Reporters "cannot place lives at risk with impunity," Sessions said. "We must balance their role with protecting our national security and the lives of those who serve in our intelligence community, the armed forces, and all law -abiding Americans."

Sessions offered no details about the scope or timeline of the review. Deputy Attorney General Rod Rosenstein told reporters that the review was in its early stages, and was prompted by concerns raised by career prosecutors about finding ways to speed up the pace of cases.

"We're taking basically a fresh look at it," Rosenstein said. Asked if the Justice Department would commit to not prosecuting reporters, Rosenstein said he would not comment on hypotheticals.

Rosenstein did say, however, that there is a new unit at the FBI focused on investigating leaks to reporters, saying that these cases raise "unique issues."

Trump made attacking the press a central feature of his campaign, and has continued the negative rhetoric against the media since taking office. Sessions, as a senator, had sparred with journalists' groups at times, including opposing efforts to provide protections for journalists wishing to shield their sources.

Sessions' announcement represents a particular setback for the press, which worked with former Attorney General Eric Holder on the revised subpoena guidelines amid an uptick of leaks prosecutions, and revelations that federal investigators had obtained emails and phone records from journalists.

Press freedom advocates criticized the Obama administration for its aggressive approach to leak prosecutions, and expressed concern on Friday that the progress they nevertheless managed to make with Holder would be undone.

Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, told BuzzFeed News that Sessions' announcement was "disconcerting."

"The effort that went into revising [the guidelines] in 2015 had a huge amount of input from career prosecutors, and interests of law enforcement and national security were all carefully taken into consideration as well as the interests of reporters and the public in getting info," Brown said. "We thought a pretty good balance was struck."

Under the revised guidelines adopted by Holder — first in 2013 and then in 2015 — the attorney general must sign off on subpoenas to reporters and to third-party communications providers for records about journalists, with a few exceptions. The department also expanded the circumstances in which journalists would get advance notice that prosecutors were seeking their records.

Rosenstein told reporters on Friday that he expected Justice Department officials to consult with media representatives as part of its review, adding that a meeting might take place next week with the Media Dialogue Group, a coalition of media lawyers and journalists first convened by Holder in 2014. A DOJ spokesperson confirmed later that the meeting would take place on Aug. 9.

Sessions announced the review of media subpoena guidelines as part of a broader statement on Friday about the administration's intent to crack down on leaks that threaten national security.

He said that in the first six months after Trump took office, there were nearly as many criminal referrals concerning leaks of classified information as there were in the previous three years combined. A criminal referral means a request that the Justice Department investigate a possible leak of classified information that could harm national security. A referral can come from the intelligence community, or other sources outside the Justice Department.

Rosenstein declined to comment on the reason for the increase in referrals, but he issued a warning to government officials and employees, saying that any policy disagreement with the administration "doesn't give them the license to leak information to a reporter."

The Justice Department declined to provide the number of criminal referrals related to the possible unauthorized disclosure of classified information.

Sessions said that since January, the department has more than tripled the number of active leak investigations, as compared to the number of investigations open when President Obama left office. Sessions said that four people had been charged with leaking classified information or hiding their contacts with foreign intelligence officers; Rosenstein clarified that just one of those cases, the prosecution of federal contractor Reality Winner, involved information shared with the media.

Sessions did not take questions, leaving that job to Rosenstein — his "fine deputy," as Sessions called him. Rosenstein said the Justice Department's efforts were focused on the disclosure of classified information that could harm national security. Noting that the term "leaks" can refer to a number of things, he distinguished the types of case that the Justice Department was focused on from other leaks that did not involve classified information or carry national security risks.

Sessions did indicate in his remarks that the department would likely be looking into the leaked transcript of Trump's conversations in January with the leaders of Mexico and Australia.

"No one is entitled to surreptitiously fight their battles in the media by revealing sensitive government information," Sessions said. "No government can be effective when its leaders cannot discuss sensitive matters in confidence or to talk freely in confidence with foreign leaders."

Trump has routinely complained about leaks in his administration. Asked if Sessions' focus on leaks was an effort to appease the president — Trump has repeatedly expressed his displeasure with Sessions for recusing himself from the investigation into Russian influence in the election — Rosenstein declined to comment.

Trump counselor Kellyanne Conway told “Fox & Friends” on Friday that “it’s easier to figure out who’s leaking than the leakers may realize.” Asked if lie detectors could be used, she said: “Well, they may, they may not.”


Updated with comments from Kellyanne Conway.

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