Is DOJ Going Soft On Leaks?

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This morning on Fox News Sunday, Chris Wallace asked Deputy Attorney General Rod Rosenstein about the administration’s determination to stop leaks, including criminal leaks that damage national security. The key question here is whether DOJ is willing to go after reporters who publish classified information in violation of the Espionage Act. As Scott has written, there is no obstacle under current law to prosecuting reporters and editors. But Rosenstein seemed distinctly lacking in enthusiasm:

WALLACE: But the head of the reporters committee for the freedom of the press says when the — what the attorney general is suggesting is a dangerous threat to the freedom of the American people to know and understand what their leaders are doing and why.

Your response?

ROSENSTEIN: I think that’s an overreaction, Chris. The attorney general has been very clear that we’re after the leakers, not the journalist. We’re after the people who are committing crime.

Emphasis added. The reporter is committing a crime, too. What about him?

And so, we’re going to devote the resources we need to identify who is responsible for those leaks and who has violated the law and hold them accountable.

WALLACE: Well, there are a couple of aspects to that. First of all, you say you are after the leakers, not the reporters. President Trump has reportedly suggested at one point prosecuting the reporters if they leak — if they publish classified information. Are you ruling that out?

ROSENSTEIN: Chris, we have the same position on that I think as Attorney General Holder, that is we don’t prosecute journalist for doing their jobs.

Does Rosenstein seriously believe that illegally publishing classified information that is damaging to the national security is part of a journalist’s job? It sounds that way.

We look at the facts and circumstances of each case and we determine whether somebody has committed a crime and whether it’s appropriate to hold them accountable for it.

WALLACE: And you don’t consider the publishing classified information as a crime?

It is frustrating that Wallace seems to have a better grasp of the law than the Deputy Attorney General.

ROSENSTEIN: Well, Chris, I don’t think you can draw any general line like that, it depends upon the facts and circumstances. You know, generally speaking, reporters who publish information are not committing a crime. But there might be a circumstance where they do.

You know, I haven’t seen any of those today, but I wouldn’t rule it out in the event that there were a case where a reporter was purposely violating the law, then they might be a suspect as well.

This riff is mystifying. Is Rosenstein seriously unaware of the many instances where reporters and editors have published classified information that compromised the nation’s security in violation of the Espionage Act? And what is the point of Rosenstein’s qualification of “purposely” breaking the law? Does he think the New York Times and the Washington Post are doing it accidentally?

But that’s not our goal here. Our goal is to prevent the leaks. And so, that’s what we’re after here. We haven’t revised a policy with regard to reporters.

WALLACE: OK. But there’s another aspect of this, which is if a reporter gets information from somebody, puts it out in the beginning of the Obama administration, they were very aggressive in going after their sources. And if you subpoena information and they refused to disclose it, they can still end up in jail at the end of the Obama administration after a backlash from reporters, they loosened up on that. And first of all, it had to be approved specifically by the attorney general and it was kind of a last resort to go after reporters sources.

Are you are reviewing that?

Another good question by Chris Wallace. There is no federal shield law. Reporters are not entitled to protect their sources in response to a federal subpoena. If they refuse to answer questions about their sources, they can be jailed until they change their minds. This is what happened to Judith Miller some years ago.

ROSENSTEIN: Yes, Chris, that’s a different issue. That policy has been in existence for a very long time. Attorney General Holder revised that in 2015. It’s possible he got it exactly right but maybe he didn’t. We’re going to take a fresh look at that, and we’ve gotten feedback from our career prosecutors and agents that some of the procedural hurdles are delaying their investigation. So, I think it’s important for us to take a fresh look at it and evaluate whether or not there are any improvements that should be made.

I have no idea what that answer meant, but if I were a criminal reporter, I would be breathing easy.

WALLACE: And what that means in your effort to get sources that you end up putting a reporter who refuses to disclose that source in jail?

ROSENSTEIN: I’m not going to answer a hypothetical, Chris. As I said, I think it depends upon the facts and circumstances in each case.

A very squishy performance by Rosenstein. If President Trump really wants to stop illegal leaks, he needs to put the fear of God into reporters and editors. Nothing else will suffice. If three or four reporters–or, better yet, editors–were doing hard time in Leavenworth, national security leaks would dry up quickly.