Attorney General Eric Holder

Attorney General Eric Holder held a meeting with representatives of media organizations and addressed concerns, which related to the Justice Department’s revision of guidelines that address when it is appropriate to subpoena reporters and conducted searches of newsrooms for information for criminal investigations. The representatives raised the issue of New York Times reporter James Risen, who has challenged a subpoena issued to force him to testify in a leak prosecution.

Allegedly, former CIA officer Jeffrey Sterling provided information to Risen on a classified program “intended to impede Iran’s efforts to acquire or develop nuclear weapons,” which he later published in his book, State of War. The Justice Department has spent about six years trying to force him to testify about how he obtained this information, and now, having lost in an appeals court, Risen has asked the Supreme Court to hear his case.

Charlie Savage, a journalist for the Times, while noting that no person from the Times was present at this meeting, reported:

…[A]ccording to one participant, Mr. Holder said, and an aide allowed to be put on the record, the following: “As long as I’m attorney general, no reporter who is doing his job is going to go to jail. As long as I’m attorney general, someone who is doing their job is not going to get prosecuted.”

A Justice Department statement describing the meeting said that Mr. Holder was not discussing any particular case…

Savage and an editor at the Times apparently chose to infer that this reflected Holder “hinting” to journalists that Risen would not be jailed if he lost in the courts and still defied a subpoena. The news organization published their report on the meeting under the headline, “Holder Hints Reporter May Be Spared Jail in Leak.”

However, Holder made no such hint. The position of President Barack Obama’s administration is that they are not prosecuting Risen. The administration also probably expects him to cooperate in the leak prosecution and not resist—or, in other words, they expect Risen to “do his job.”

Office of Director of National Intelligence general counsel Robert Litt expressed the administration’s position pretty clearly at the “Sources and Secrets” conference in New York in March when Ken Auletta of The New Yorker asked him about Risen:

…KEN AULETTA: Do you agree that Jim Risen ought to be prosecuted for…?

ROBERT LITT: Jim Risen is not being prosecuted.

AULETTA: …Not revealing his sources?

LITT: He’s not being prosecuted. He is being subpoenaed to give evidence as other people. The courts have determined that—to this day at least—that he doesn’t have a privilege against giving that information.

There was discussion in the last panel of a media shield law. That’s a law that President Obama has endorsed. I am not going to speculate as to how that would’ve applied to his particular case, but if there is a media shield law that’s passed, that’s another thing that the courts can do to enforce it.

There’s never been a reporter prosecuted. I don’t think there ever will be a reporter prosecuted because I think every president is aware of the adage about not getting into an argument with somebody who buys printer’s ink by the barrel. I think that as a practical matter, but it’s very different in my mind to go after the people responsible for leaking the information. [emphasis added]

The view is similar to what Holder has claimed is the Justice Department’s goal in leak investigations: to “identify and prosecute government officials who jeopardize national security by violating their oaths, not to target members of the press or discourage them from carrying out their vital work.”

Litt expressed this viewpoint at the conference, saying, “People who leak classified information commit crimes, and if we can catch them, which is not always easy, we ought to prosecute them and they ought to go to jail.” (He actually suggested Risen had “called him out” on this.)

The Washington Post’s Paul Farhi did not detect any hints in Holder’s remarks. In fact, Farhi focused on what was the biggest issue at the meeting: the term “ordinary newsgathering,” which appears in the guidelines.

The “Justice Department may apply for a search warrant to obtain a journalist’s materials only when that person is a focus of a criminal probe for conduct outside the scope of ordinary newsgathering,” the Associated Press noted in its coverage. The worry is that this gives the Justice Department too much discretion to issue subpoenas without authorization from the attorney general.

It is rather peculiar that the Times would have this need to promote the idea that there is some silver lining. Risen is in the fight of his life and told Times public editor Margaret Sullivan in January:

This case has been transformed into a potential constitutional showdown over the First Amendment and the role of the press in the United States because of the Obama Administration’s aggressive use of the powers of the government to try to rein in independent national security reporting. It was the Obama Administration that sought to turn this case into a basic constitutional fight over whether a reporter’s privilege exists. It is the Obama Administration that wants to use this case and others like it to intimidate reporters and whistleblowers. But I am appealing to the Supreme Court because it is too dangerous to allow the government to conduct national security policy completely in the dark.

The Times can publish naive reports presuming Holder made hints that Risen will not be jailed as much as they want. But wouldn’t it be better to promote the reality, which remains bleak so that Americans who read the Times can truly understand what is at stake here?

The government has spent six years arguing Risen should be required to testify and reveal details about his confidential sources. If they prevail at the Supreme Court, they will not accept victory but negate the past six years in which time, energy and resources have been expended just so Risen does not go to jail on their watch.

The Obama administration is fully prepared to defend the distinction between prosecutions of reporters and jailing of reporters who do not comply with subpoenas in leak prosecutions. So, if the Times—and any other media organization—wants to highlight the real travesty in all this, they should produce coverage that more accurately explores why the US government would jail a reporter to get this information and how that creates a chilling effect in journalism.

Creative Commons-Licensed Photo from US Embassy New Zealand