“We’re after the leakers, not the journalists,” he said on “Fox News Sunday.” “We don’t prosecute journalists for doing their jobs.”
But Rosenstein would not rule out potentially charging journalists in the future altogether, saying reporters could face charges if they deliberately violated the law.
“Generally speaking, reporters who publish information are not committing a crime, but there might be a circumstance in which they do,” he said. “I wouldn’t rule it out if there were a case where the reporter was purposefully violating the law” [Pete Schroeder, “U.S. Justice Department Not Looking to Charge Journalists for Leaks: Official,” Reuters, 2017.08.06].
As I said, half-sigh. Rosenstein is leaving the door open to throwing some book at journalists, if DOJ can find one that applies. In announcing the crackdown (plug-up?) on leaks Friday, Attorney General Jeff Sessions did say the Department of Justice is reviewing the rules for subpoenaing journalists to give up their confidential sources before their leaks kill someone:
I have listened to career investigators and prosecutors about how to most successfully investigate and prosecute these matters. At their suggestion, one of the things we are doing is reviewing policies affecting media subpoenas. We respect the important role that the press plays and will give them respect, but it is not unlimited. They cannot place lives at risk with impunity. We must balance their role with protecting our national security and the lives of those who serve in our intelligence community, the armed forces, and all law abiding Americans [Attorney General Jeff Sessions, remarks, Department of Justice, 2017.08.04].
Whoa—placing lives at risk? I know that you have to come up with a pretty stark harm to justify overruling the First Amendment, but, as we used to say in high school policy debate, where’s the death on the flow? I scan this list of early Trump leaks (towels, lack of economic knowledge, fear of stairs…) and this more recent list of twelve major leaks (the rude call to Australia, Trump’s disclosure of classified info to the Russian, the Comey memo…) and see no leak that caused any deaths or seems to have the potential to directly cause any deaths. (I welcome the national security experts in the audience to connects any dots they can between leaks and death.)
Jeh Johnson, Obama’s DOD general counsel and then Homeland Security chief, says Trump’s inability to keep information from leaking is bad enough to warrant serious DOJ intervention. But he also warns that going after journalists will be legally problematic:
JOHN DICKERSON: …Give me your assessment of what Attorney General Sessions has said about going after leaks. Is he drawing the line in the right place? And what does he need to balance?
JEH JOHNSON: The leaks right now are really bad. I’ve never seen it this bad. There should be a concerted effort to identify and go after leakers. The one note of caution I’d give the attorney general is what I tell younger lawyers: bad facts make bad law. So before you decide to take on journalists, reporters, and perhaps subpoena their sources, be aware that the courts are going to get involved, and that has the potential for making bad law in this area [Face the Nation, transcript, 2017.08.06 ].
The press is not the problem. The man at the top is. Trump sold voters his false TV image as a confident manager. Trump’s unpredictable, unstructured management style has produced the chaos we expected—in this case, an inability to hire and inspire loyalty. It’s not liberals keeping Trump from doing his job. Trump himself is doing such a bad job that the people closest to him, the people who see most immediately how bad he’s doing, believe “it is their job to save America from this President.”
Far from putting lives at risk, leakers may be saving lives by revealing Trump’s poor performance and hastening his removal from office.