Franklin, Andrews, Kramer & Edelstein

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How a Crackdown on Leaks Threatens Confidential Sources

By DAVID McCRAW SEPT. 4, 2017
https://www.nytimes.com/2017/09/04/insider/how-a-crackdown-on-leaks-threatens-confidential-sources.html?mcubz=0

It was just four years ago that roughly two dozen representatives of major news organizations crowded around a conference table at the Justice Department for a meeting with Attorney General Eric H. Holder Jr. Our agenda? Strengthening the Justice Department’s guidelines that limit when federal prosecutors can serve subpoenas on the news media.

The issue was not theoretical. It had just been revealed that federal investigators had secretly seized the phone records of The Associated Press and the emails of a Fox News correspondent during leak investigations. The Justice Department had convened the meetings to address what we saw as a perilous trend.

The media representatives — lawyers and executives from a range of news outlets, including CNN, Dow Jones, Hearst and the major broadcast networks — had come to make the point that when prosecutors go after journalists to find their sources, the price is ultimately paid by the public, which needs to know what its government is really up to. Mr. Holder may not have agreed with everything we had to say then and in future meetings, but the result was important: The Justice Department revised its internal guidelines to make it harder for prosecutors to obtain subpoenas for reporters’ testimony and records.

That all seems very long ago now.

Attorney General Jeff Sessions, after being chided by President Trump for being weak, recently declared a war on leakers and made clear that the news media was also on his mind. “We respect the important role that the press plays and will give them respect, but it is not unlimited,” he said. “They cannot place lives at risk with impunity.” Two days later, Rod J. Rosenstein, the deputy attorney general, tried to clean up the record. “The attorney general has been very clear that we’re after the leakers, not the journalists,” he said.

For all the overblown statements about “lives at risk,” the administration has no poker face. Journalists’ inside sourcing about the wars within the White House walls, the Russia investigations and a shifting foreign policy has been the real driver of the anti-leak fervor.

It seems all but certain that the Justice Department will try to chip away at the subpoena guidelines. Disputes over administrative regulations are rarely the stuff of high political drama. But this is one of those times when the public should be paying attention.

The guidelines run for several pages, but at base they say that prosecutors are to seek testimony and evidence from journalists only as a last resort, and that news organizations should have a chance to go to court to challenge any subpoenas.

The guidelines are far from ironclad. If a prosecutor were to ignore them, a journalist would have no right to go into court and demand they be followed. But they are important. They are rooted in the country’s commitment to press freedom. And over the last four decades, they have, by and large, worked, allowing prosecutors to do their jobs while protecting journalists from routinely being dragged into criminal proceedings.

The larger legal context matters here. There is no federal statute that gives reporters the right to protect the confidentiality of sources. But for many years, federal judges were willing to find in the Constitution and prior judicial decisions just such a right. They never saw it as an absolute, but they did require prosecutors to prove a need for the reporter’s testimony or records.

In the past decade, the pendulum has swung in the opposite direction. Some courts have questioned whether those earlier decisions were right. Witness the long-running legal battle between the former Times reporter James Risen and prosecutors in a case involving a former C.I.A. officer, Jeffrey Sterling. Mr. Sterling was prosecuted and ultimately convicted of leaking classified information, but the case may best be remembered for Mr. Risen’s principled refusal to reveal whether Mr. Sterling (or anyone else for that matter) had been his source.

In the end, faced with Mr. Risen’s refusal, the prosecutors simply abandoned their plans to call him — but not before they had won a significant appellate decision holding that reporters enjoyed no special privilege to resist criminal subpoenas.

When federal courts dial back protection for reporters, the guidelines become an essential first line of defense against overzealous prosecutors. The guidelines are designed to balance the government’s need to prosecute and the public’s abiding interest in having a news media that can give voice — and protection — to whistle-blowers who want to come forward to shed light on wrongdoing, waste and misbegotten policies.

If there is one lesson to be drawn from the coverage of Washington today, four years after that Holder meeting, it is this: Now is not the time to be rethinking the guidelines.

David McCraw is vice president and deputy general counsel of The New York Times.

https://www.nytimes.com/2017/09/04/insider/how-a-crackdown-on-leaks-threatens-confidential-sources.html?mcubz=0