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Justice Department Crackdown on Leaks May Also Focus on Journalists


Attorney General Jeff Sessions, accompanied by, from left, National Counterintelligence and Security Center Director William Evanina, Director of National Intelligence Dan Coats, speaks during a briefing at the Justice Department in Washington, Aug. 4, 20

U.S. Attorney General Jeff Sessions is putting journalists on notice as he cracks down on a deluge of leaks of classified information that has dogged the Trump administration since it took office in January.

“We respect the important role that the press plays and will give them respect, but it is not unlimited,” Sessions said Friday as he announced that the Department of Justice has more than tripled the number of leak investigations this year.

Sessions said the department is reviewing guidelines on subpoenaing journalists’ records as part of a stepped-up effort to investigate and prosecute leakers.

Those guidelines, put in place by the Obama administration in 2015, made it more difficult for the Department of Justice to subpoena journalists’ phone and email records in leak investigations.

While the regulations don’t have the force of law, press freedom advocates see them as critical to journalists’ ability to communicate with confidential sources.

Sessions: 'Culture of Leaking Must Stop'

‘Chilling effect’

The New York-based Committee to Protect Journalists said relaxing the subpoena rules would have a “chilling effect” on press freedom.

“Rolling back the limited protections on communication between journalists and their sources would lessen the public’s ability to hold their elected leaders to account and weaken hard-won standards of source protection around the world,” CPJ researcher Alex Ellerbeck said in a statement.

The Justice Department revised its guidelines in 2015 after revelations that it had secretly obtained phone records of Associated Press reporters and had named a Fox News reporter a co-conspirator in a separate leak investigation.

FILE - Reporters raise their hands as White House press secretary Sean Spicer takes questions during the daily briefing in the Brady Press Briefing Room of the White House in Washington.
FILE - Reporters raise their hands as White House press secretary Sean Spicer takes questions during the daily briefing in the Brady Press Briefing Room of the White House in Washington.

The revised policy called for additional levels of approval before a reporter could be subpoenaed.

Mary-Rose Papandrea, a professor of law at the University of North Carolina, said the guidelines made it clear that the Department of Justice “would not ever have a member of the news media go to jail for doing his or her job.”

The Espionage Act of 1917 makes it a crime to leak classified information, and it “contains no exceptions that would protect members of the news media,” she said.

That no journalist has been prosecuted under the law is “more of a matter of custom and practice that the United States government has recognized that the press plays an important role in our democracy,” Papandrea said.

Since 1971, the Department of Justice has used the law to prosecute at least 12 government workers accused of leaking classified information to journalists, including eight people during the Obama administration, according to CPJ.

Sessions: Leaks Are ‘Undermining The Ability of Our Government to Protect This Country’

Charges leveled

Sessions said the Department of Justice has charged four people with leaking classified information or “concealing contacts with foreign intelligence agents” this year.

In the only known leak case, the Justice Department in June charged Reality Leigh Winner, a 25-year-old government contractor, with illegally sending a classified National Security Agency document to a news site.

Reality Leigh Winner, 25, a federal contractor charged by the U.S. Department of Justice for sending classified material to a news organization, poses in a picture posted to her Instagram account.
Reality Leigh Winner, 25, a federal contractor charged by the U.S. Department of Justice for sending classified material to a news organization, poses in a picture posted to her Instagram account.

Sessions’ announcement followed repeated complaints by Trump that the Justice Department wasn’t aggressive enough in investigating leaks of classified information that he claims have emanated from intelligence agencies.

“I want the attorney general to be much tougher on the leaks from intelligence agencies. These are intelligence agencies. We cannot have that happen,” Trump tweeted last week.

Sessions said he agreed with Trump and condemned “in the strongest terms the staggering number of leaks undermining the ability of our government to protect this country.”

Dan Coats, director of national intelligence, said not all leaks originate with intelligence agencies.

“They come from a wide range of sources within the government, including the executive branch and including the Congress,” Coats said.

Coats: Leaks Are ‘Betraying the Intelligence Community’

Number of leaks

According to a recent Senate report, the Trump administration dealt with one leak per day during its first four months in office.

The report examined news articles during Trump’s first 126 days in office and discovered at least “125 stories with leaked information potentially damaging to national security.”

The report said 78 of the leaks were related to the ongoing investigation into Russian meddling in last year’s election and alleged collusion with the Trump campaign.

The report was prepared by the Republican staff of the Committee on Homeland Security and Governmental Affairs.

Trump has called the Russia investigations a hoax and has said “the only crime against us is LEAKS.”

Sessions, who ordered a review of the Justice Department’s leaks investigations soon after he was sworn in as attorney general in February, said it found “there were too few referrals, too few investigations with insufficient resources dedicated to them.”

When “few investigations take place, criminal leaks may occur more often and a culture of leaking takes hold,” Sessions said.

But Mark Zaid, a national security lawyer who represents whistle-blowers, said the investigations will have little to no deterrent effect on leaks.

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