Last week the Attorney General said that the Department of Justice is revisiting its policies on subpoenas to journalists. He made the comment in the context of discussions of the damaging and embarrassing leaks that continue to bedevil the administration. Attorney General Sessions referred to leaks of classified information, but we’ve also seen many leaks of apparently non-classified information that no doubt the administration would like to stop.
In light of my extensive coverage of the Belfast Project subpoena litigation, I have a perspective on this. If you’ll remember, the Belfast Project was an oral history project at Boston College that recorded and archived interviews with participants in the Troubles, the long and bloody struggle between the British and Irish republicans. The leaders of the Project made promises of confidentiality to the participants. But when Dolours Price gave an interview in 2010 that admitted her involvement in the disappearance of Jean McConville and disclosing facts about her Belfast Project interview, the British government made a request, under the US/UK mutual legal assistance treaty, for the the interviews. This led to litigation here in Boston, which I covered extensively. I predicted, correctly as it turned out, that the government would prevail, because in the context of a grand jury proceeding at least, there is no journalist’s privilege, let alone an oral historian’s privilege. As the First Circuit, quoting Wigmore, said: “the mere fact that a communication was made in express confidence … does not create a privilege. … No pledge of privacy nor oath of secrecy can avail against demand for the truth in a court of justice.”
That is not to say that because the government can force a journalist to reveal his or her sources by way of a subpoena that it should force a journalist to reveal a source. Some states have enacted “shield laws” to prevent or limit subpoenas to journalists. And the Justice Department has special guidelines that it applies when deciding whether to ask a grand jury to issue a subpoena to a journalist, and that note the need to balance law enforcement values against the values of a free press when deciding whether to issue subpoenas.
What kind of political judgments can we make about the use of journalist subpoenas in the age of Trump? To get at this question, we first have to ask what we should make of the leaks themselves in the new administration. On the one hand, in the abstract, executive branch officials really should not leak classified information, and they should not leak non-classified but confidential information. So you have some in the national security press saying that the leaks should stop, period. Paul Rosenzweig, for instance, has a new article in Lawfare titled “Stop Leaking. Just Stop!”
On the other hand, some of the information that the press has reported based on leaks has been important for the public to know. The list includes knowing that General Flynn had lied about his contacts with the Russian ambassador in a way that rendered him liable to pressure from the Russian intelligence services; that Jared Kushner had tried to set up a secret communications channel with the Russian government using Russian communications facilities; and that the President’s son took a meeting with a Russian lawyer and others, including Paul Manafort, seeking dirt on Hillary Clinton. This stuff is important because there are real and serious questions about foreign influence on the electoral process. Of course, people entrusted with classified information should not leak it, and some of the important leaks have, apparently, been leaks of classified information. But we can be grateful for the leaks while acknowledging that the leakers violated the law.
The political problem with the new emphasis on journalist subpoenas is that there is no reason to think that the Trump Department of Justice will weigh the free press values at stake here with the law enforcement values in an appropriate way, given the political imperative to protect the administration. That doesn’t make subpoenas to journalists illegal or wrong. It just means that the DOJ may be about to begin acting in an unwise way. We need to pay attention.
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