During his confirmation hearing on Tuesday, Jeff Sessions left open the possibility of putting reporters in jail for doing their job. His startling response came as an answer to a question by Minnesota Senator Amy Klobuchar:
"You've raised concerns in the past about protecting journalists from revealing their sources, and you did not support the Free Flow of Information Act. In 2015, the Attorney General revised Justice Department rules for when federal prosecutors can subpoena journalists for their records, and he also committed to releasing an annual report on any subpoenas issues, or charges made against journalists, and committed to not put reporters in jail for doing their job.
If confirmed would you commit to following the standards already in place at the Justice Department, and will you make that commitment to not to put reporters in jail for doing their jobs?"
"I'm not sure," Sessions stated clearly. "I have not studied those regulations."
Sessions then noted that there is an accepted history of deference to news media, but also left the prosecution of media on the table.
"You could have a situation where the media is really not the unbiased media we see today," he said, "and they could be a mechanism through which unlawful intelligence is obtained. There are other dangers that could happen with regard to the federal government, that often doesn't happen to media covering cases in the states."
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If our future attorney general actually has not studied regulations regarding our very first amendment, that’s concerning as it is. More concerning, though, is the fact that Sessions actually has extensive experience with these regulations. As litigator Greg Lipper pointed out on Twitter, it is highly unlikely that Sessions was being honest when he stated that he hasn't studied them.
Sessions hedging on the question of press freedom, and his tying of prosecution to "bias" in reporting, should set off alarm bells. Bias should not be related to whether or not a journalist is safe from prosecution—otherwise reporters face a constant fear of political prosecution due to ideology. And Sessions’s answer is even more troublesome because of Trump, who has repeatedly threatened to “open up” libel laws and is constantly calling all media lying, biased, and/or crooked.
It's somewhat unclear what Sessions means when he describes media as a mechanism for obtaining unlawful intelligence. Is Sessions leaving the door open to prosecuting journalists for publishing information that was illegally obtained, such as the information released by WikiLeaks earlier this year?
As Matt Zapotosky with the Washington Post noted on Twitter, Sessions’s response is much less categorical than that of Former Attorney General Eric Holder, who in 2015 stated that he would not punish journalists for doing their job.
Holder’s assertion came after an extended legal battle between New York Times reporter James Risen and the Department of Justice. Risen was critical of Obama's Justice Department and Attorney General Holder even after Holder stopped demanding Risen reveal his sources, calling the administration "the greatest enemy of press freedom in a generation."
The media is more important than ever in the Donald Trump era, where corruption runs rampant and nothing is predictable. Sessions’s response to Sen. Klobuchar’s question indicates that he will erode, not strengthen, protections for the press.
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