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Sessions Seems Hell-Bent on Destroying First Amendment


The DOJ may be officially “open for business,” but the First Amendment appears to be closed for renovations. Today, our bespectacled attorney general, in his signature tenor, drawled some threats to would-be leakers:

“I have, this morning, this warning: Don’t do it. For the past several months we have made changes and are seriously ramping up our efforts.”


Jeff Sessions’ attack on leakers was conveniently wrapped up in a declaration of war on journalists too:

“We must balance [journalists’] role with protecting our national security and the lives of those who serve in the intelligence community, the armed forces and all law-abiding Americans.”

Sessions, though, won’t be “balancing” a damn thing. He might be rewriting the DOJ’s guidelines about how and when federal prosecutors can subpoena and otherwise force members of the media to give up their sources. Like so much of what Trump’s DOJ is choosing to focus upon, the media subpoena guidelines weren’t broken and don’t need fixing. They were, in fact, amended in 2015, as the product of talks between news media organizations led by the Reporters Committee and then-Attorney General Eric Holder. At that time, the guidelines were revised to strengthen protections for reporters after cases involving leaks had been brought by Obama Administration.

The guidelines are available here, and the 2015 changes detailed here and here.  In 2015, the biggest change to the DOJ guidelines was the replacement of the phrase “ordinary newsgathering activities” with simply “newsgathering activities.” The change was one that was small in the drafting, but mighty in its impact. By removing the word “ordinary,” the revisions eliminated the possibility that uncommon, but still appropriate newsgathering activities (such as talking to sources about national security information), would fall outside the protections the guidelines sought to create for media.

According to the Reporters Committee for the Freedom of the Press, those guidelines were the culmination of “a great deal of good-faith discussion between the news media and a wide range of interests from within the Department of Justice…” Furthermore, according to the Committee Executive Director, Bruce Brown, the 2015 guidelines “carefully balance the need to enforce the law and protect national security with the value of a free press that can hold the government accountable to the people.”

The reaction among the press to Jeff Sessions’ media crackdown hasn’t exactly been warm. Bruce Brown from the Reporters Committee on the Freedom of the Press warned in a statement:

“The attorney general’s intent to revisit the guidelines is deeply troubling as is the frame he put around it today – that reporters are putting lives at risk. Journalists and news organizations have a long history of handling this information in a responsible way, working with government officials to evaluate potential harms, and taking steps to mitigate any damage when there is an overwhelming public interest in revealing it.”

And then there was Chuck Todd’s preview of drama to come:

The ACLU called Sessions out too:

Clearly, this move-over-liberal-media-there’s-a-new-sheriff-in-town announcement by Sessions is his attempt to get back into Trump’s good graces. After all, Trump may enjoy publicly trashing Sessions, but muzzling the media is still Trump’s all-time favorite pastime (I mean, after grabbing women by their p%$sies). Disgusting as it is to watch our attorney general’s ass-kissing at the expense of our democracy, it’s even more disturbing to see Mike Pence stand by and watch it happen.

Back when Pence was just a Congressman from Indiana, he introduced the media-protective  “Free Flow of Information Act.” Twice. And guess what he said about it?

“As a conservative who believes in limited government, I believe the only check on government power in real time is a free and independent press.”

I guess that was the old Pence. The new one is way too busy finding ways to ride Trump’s coattails without pissing off the evangelicals to be caught dead in a reasonable bipartisan effort to protect the media. Too bad, because Pence v. Sessions would be an epic battle of misguidedness and illogic that I’d have loved to watch.


This is an opinion piece. The views expressed in this article are those of just the author.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos