Sen. Jeff Sessions (R-Ala.) said Tuesday at a confirmation hearing to become the country’s next attorney general that he has not studied the current guidelines for investigations involving journalists and wouldn’t commit to not jailing them in the course of probing leaks.
In questioning Sessions, Sen. Amy Klobuchar (D-Minn.) recalled how her father was a newspaper reporter and said she believed the press “is essential to our democracy.” She noted how former Attorney General Eric Holder revised the agency’s rules in 2015 for when federal prosecutors could subpoena journalists or their records and affirmed while in that position that he wouldn’t jail reporters for doing their jobs.
“If confirmed, will you commit to following the standards already in place at the Justice Department and will you make that commitment not to put reporters in jail for doing their jobs?” Klobuchar asked.
“I’m not sure,” Sessions responded. “I have not studied those regulations.”
Sessions said he’s understood since his tenure as a U.S. attorney in the 1980s that there was a high bar for subpoenaing journalists, and approval would need to be granted at the highest levels of the Justice Department.
“So I do believe the Department of Justice does have sensitivity to this issue,” he said. “There have been a few examples of where the press and the Department of Justice haven’t agreed on these issues. But for the most part, there is a broadly recognized and proper deference to the news media.”
However, Sessions suggested it’s possible that a media entity could serve as a “mechanism through which unlawful intelligence is obtained.”
Journalists’ advocacy groups have expressed reservations about Sessions given his record in the Senate on the press and transparency issues. In 2013, Sessions opposed a federal shield law that he said could “create a legal mechanism to protect anyone who is going to call himself a newsperson.” Sessions has also opposed reforms to the Freedom of Information Act.
Sessions’ stated unfamiliarity Tuesday with the Justice Department’s rules for journalists is concerning given that news organizations had to push for such changes in response to the Obama administration’s crackdown on leaks and aggressive use of the Espionage Act.
In May 2013, the Justice Department secretly seized Associated Press reporters’ and editors’ phone records when investigating a leak. It was revealed a week later that Justice Department labeled a Fox News reporter’s actions in gathering information as criminal.
The Obama Justice Department also waged a years-long fight to force New York Times reporter James Risen to reveal a source for a book published during the Bush years. Last month, Risen argued that the precedent set in his case and other leak investigations mean “if Donald Trump targets journalists, thank Obama.”
The Trump campaign was especially hostile at time to the press, including blacklisting media outlets, and the president-elect has personally threatened to sue news organizations and spoke of loosening libel laws to make it easier to win such cases against the press.
Trump is already trying to crack down on leaks to the news media before taking office. Last week, he urged members of Congress to investigate who disclosed to NBC News the details of the intelligence community’s assessment of Russian election-related hacking.
But as Politico noted Monday, it’s rare for Congress to investigate a leak to the news media. Such probes are generally done through the Justice Department, which will soon be led by Jeff Sessions.