Attorney General Nominee Seems Willing To Let The DOJ Jail Journalists Over Published Leaks

Jeff Sessions did everything the president wanted him to do: roll back civil rights investigations, get tough on immigration, amp up the War on Drugs, blame everyone but law enforcement for spikes in crime. It didn't matter. The president shitcanned Sessions because he recused himself from the DOJ's investigation of Trump's Russia-related activities.

His replacement, William Barr, is undergoing the formality of a confirmation hearing. It's assumed there's no way he can blow it. But he's trying.

Barr would be no improvement over the departed Sessions. Barr thinks marijuana should be illegal everywhere. He's a fan of expanding executive power. As attorney general under George Bush Sr., he ordered phone companies to comply with DEA demands for millions of call records originating in the United States, laying the groundwork for the NSA's Section 215 collections.

He also doesn't seem to care much for the First Amendment. As attorney general, he pushed for a Constitutional amendment banning the burning of American flags in the wake of a Supreme Court decision offering First Amendment protection for this form of expression.

Thirty years later, Barr seems just as reluctant to respect the First Amendment. During the confirmation hearing, Sen. Amy Klobuchar lobbed what should have been a softball to the AG nominee. Moving on from the appalling murder of Washington Post journalist Jamal Khashoggi by members of the Saudi government, Klobuchar asked if the Justice Department would jail journalists for doing their jobs.

Instead of a quick "No," or a quickly-qualified "Yes, but only under the most extreme circumstances," Barr responded with a disturbingly long "ummm" and an uncomfortable silence. When Barr finally broke his silence, his answer was worse than his silence.

I can conceive of situations where…you know, as a last resort… and where a news organization has run through a red flag or something like that, knows that they're putting out stuff that will hurt the country… there could be a situation where someone could be held in contempt.

This is bad news for the free press. Jeff Sessions already began laying the groundwork for easier surveillance and prosecution of journalists by the DOJ. The standards alluded to by Barr ("policies in place") have been there for more than two decades. As they stand now, the DOJ has to exhaust all other investigative methods before demanding information from journalists and, if it plans to subpoena news agencies, it has to give them advance notice and work with them to minimize First Amendment intrusions.

Facing a rash of leaks following the election of Donald Trump, the DOJ has changed course. Under Sessions' (and now Rod Rosenstein's) supervision, the policies are being rewritten to make it much easier for the government to target journalists during investigations.

Multiple sources familiar with the ongoing DOJ review tell me that it has two main goals. The first is to lower the threshold that prosecutors must meet before requesting subpoenas for journalists’ records; the second is to eliminate the need to alert a media organization that Justice intends to issue a subpoena.

Given Barr's answer here, it's safe to assume he'll pick up where Sessions left off when he becomes attorney general. That's bad news for journalists and bad news for the First Amendment in general. Barr could have reaffirmed the DOJ's commitment to upholding the Constitution but instead indicated the DOJ will prioritize protecting the government over protecting the people it serves.