Attorney general considers making it easier to subpoena journalists

Attorney General Jeff Sessions announced on Aug. 4, 2017, that the Department of Justice was “reviewing our policies affecting media subpoenas” as part of a broader crackdown on unauthorized leaks of information to the press.

Sessions suggested news organizations had endangered people’s lives by publishing stories based on leaked information, though he did not provide any evidence for this claim.

“We respect the important role that the press plays, and we’ll give them respect, but it is not unlimited,” he said at the press briefing. “They cannot place lives at risk with impunity. We must balance the press’s role with protecting our national security and the lives of those who serve in the intelligence community, the armed forces, and all law-abiding Americans.”

The current Justice Department guidelines were implemented in 2015, after extensive discussion between then-Attorney General Eric Holder and a coalition of journalism organizations and press freedom groups, led by the Reporters Committee for Freedom of the Press. They direct the Department of Justice to only subpoena journalists for information as a last resort and require the attorney general to personally approve any subpoena of a journalist or news organization.

The guidelines also instruct the department to provide news organizations of advance notice of subpoenas and records requests related to journalism, so that the news organizations have a chance to fight the subpoenas in court before they are carried out.

The “advance notice” policy is a relatively recent addition to the guidelines. It was partly a response to concern that the Justice Department had secretly obtained journalists’ communications as part of its leak investigations.

In 2013, it was revealed that the Justice Department secretly obtained access to a Fox News reporter's private email account, and to months of phone records belonging to The Associated Press’ newsroom, in an attempt to identify journalists’ sources.

If the Department of Justice makes it easier to subpoena journalists, then more journalists are likely to be threatened with jail time. The U.S. does not have a federal shield law, which means that reporters subpoenaed to testify about confidential sources in front of a federal grand jury must either comply — which means violating the promises of confidentiality they have to their sources — or risk being held in contempt of court and jailed.