Two days after AG Jeff Sessions and Director of National Intelligence Dan Coats announced a crackdown on Trump administration leakers that could involve subpoenas to journalists, Deputy AG Rod Rosenstein took to the Sunday talk shows to emphasize that the DOJ isn't targeting journalists after all. Despite Sessions' emphasis that the DOJ respects the privileges of the press – but that those privileges don’t extend to publishing classified information that puts lives at risk – members of the media understandably expressed outrage at the notion that they be compelled to reveal their sources: after all that's precisely what the previous administration demanded in its repeated crackdown on the "free press"… at least when it reported on things that Obama did not enjoy seeing in the media.
In an interview on Fox News, Rosenstein said there’s been no change in policy with regard to journalists and their reporting on the Trump administration.
“I think that’s an overreaction the attorney general has been very clear,” Rosenstein said. “We're after the leakers. We’re not after journalists we’re after people who are committing crimes.”
Taking a page out of Barack Obama's playbook, Trump recently suggested that reporters who publish classified information should be prosecuted, the interviewer noted. But Rosenstein insisted that the DOJ has no plans to follow through with any prosecutions involving reporters. DOJ is applying the same scrutiny of reporters that former AGs Eric Holder and Loretta Lynch did while they were in office.
However, Rosenstein didn't entirely rule out a prosecution if one were warranted. Most journalists don’t commit criminal acts during their reporting, Rosenstein said.
Deputy Att'y Gen. Rod Rosenstein on revising Justice Dept. policy on subpoenas.
— Ryan Goodman (@rgoodlaw) August 6, 2017
But, “depending on the facts and circumstances,” the possibility that a reporter could cross the line shouldn't be ruled out.
“We have the same position as Attorney General Holder. We don’t prosecute journalists for doing their jobs we consider the facts and circumstances on each case.”
“Generally speaking, reporters who are publishing information are not committing a crime. But there might be a circumstance where they do. I haven’t seen any of those to date, but I wouldn’t rule it out in the event there were a case. If a reporter is violating the law then they might be a suspect as well.”
In summary, Rosenstein said that journalists will be treated with the same scrutiny as every other American under the law. But leakers, who in some cases are committing felony offenses, will be prosecuted. Ironically, none of this is new, as the soon to be former NYT journalist, James Risen, wrote in December, when he explained that "If Donald Trump targets journalists, thank Obama":
If Donald J. Trump decides as president to throw a whistle-blower in jail for trying to talk to a reporter, or gets the F.B.I. to spy on a journalist, he will have one man to thank for bequeathing him such expansive power: Barack Obama.
Mr. Trump made his animus toward the news media clear during the presidential campaign, often expressing his disgust with coverage through Twitter or in diatribes at rallies. So if his campaign is any guide, Mr. Trump seems likely to enthusiastically embrace the aggressive crackdown on journalists and whistle-blowers that is an important yet little understood component of Mr. Obama’s presidential legacy.
Criticism of Mr. Obama’s stance on press freedom, government transparency and secrecy is hotly disputed by the White House, but many journalism groups say the record is clear. Over the past eight years, the administration has prosecuted nine cases involving whistle-blowers and leakers, compared with only three by all previous administrations combined. It has repeatedly used the Espionage Act, a relic of World War I-era red-baiting, not to prosecute spies but to go after government officials who talked to journalists.
Under Mr. Obama, the Justice Department and the F.B.I. have spied on reporters by monitoring their phone records, labeled one journalist an unindicted co-conspirator in a criminal case for simply doing reporting and issued subpoenas to other reporters to try to force them to reveal their sources and testify in criminal cases.
I experienced this pressure firsthand when the administration tried to compel me to testify to reveal my confidential sources in a criminal leak investigation. The Justice Department finally relented — even though it had already won a seven-year court battle that went all the way to the Supreme Court to force me to testify — most likely because they feared the negative publicity that would come from sending a New York Times reporter to jail.
In an interview last May, President Obama pushed back on the criticism that his administration had been engaged in a war on the press. He argued that the number of leak prosecutions his administration had brought had been small and that some of those cases were inherited from the George W. Bush administration.
“I am a strong believer in the First Amendment and the need for journalists to pursue every lead and every angle,” Mr. Obama said in an interview with the Rutgers University student newspaper. “I think that when you hear stories about us cracking down on whistle-blowers or whatnot, we’re talking about a really small sample.
But critics say the crackdown has had a much greater chilling effect on press freedom than Mr. Obama acknowledges. In a scathing 2013 report for the Committee to Protect Journalists, Leonard Downie, a former executive editor of The Washington Post who now teaches at Arizona State University, said the war on leaks and other efforts to control information was “the most aggressive I’ve seen since the Nixon administration, when I was one of the editors involved in The Washington Post’s investigation of Watergate.”
And so on.
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