Risen, Holder, and Journalists’ Sensitivity to Accountability

I largely agree with Ben’s critique of James Risen’s sharp twitter criticisms of Attorney General Holder, but want to add (or reiterate) several points. First, to underscore what Ben says, the absence of a First Amendment reporter’s privilege long preceded Eric Holder and cannot plausibly be said to be part of his “legacy,” as Risen claims.  As Judge Traxler correctly wrote in a 2013 opinion that denied such a privilege to Risen: “There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source.”  For this proposition, Traxler Circuit cited a 2005 D.C. Circuit decision, which stated that the Supreme Court’s 1972 decision in Branzburg “in no uncertain terms rejected the existence of such a privilege.”  Eric Holder became Attorney General after 2005.  Perhaps Risen means that Holder did not help journalists achieve their goal of a First Amendment reporter’s privilege, but instead did what every Attorney General since 1972 has done and enforced Branzburg.  But that is not what Risen said. Second, Holder actually did more than any Attorney General in a while to extend protection to the press in leak investigations.  He twice modified DOJ guidelines to limit the circumstances in which prosecutors can subpoena journalists.  The Reporter’s Committee for Freedom of the Press describes a process of significant cooperation by Holder with the press, and significant changes by Holder to favor the press:

The guidelines that determine how and when federal prosecutors subpoena journalists were significantly modified in 2014, in response to the controversies over a seizure of Associated Press telephone records and a search warrant for the email of a Fox News reporter. They were further modified in January 2015 in response to concerns raised by news media organizations. The Attorney General invited interested groups to comment and propose changes to the guidelines in the summer of 2013. The Reporters Committee coordinated a proposal from a broad coalition of over 50 media companies and journalism organizations. The proposal called for notice to the news media in all instances where the government makes a demand on third parties for a journalist's records.  It also seeks to expand the guidelines to cover all investigatory instruments (such as search warrants, FISA warrants, national security letters) and all types of records (including email, credit card information, and other newsgathering materials). Attorney General Holder released his report to the president on the department's subpoena policy in July 2013, promising changes in the federal regulations. The finalized rules were released on Feb. 21, 2014. They addressed most of the concerns that the journalism coalition sought, including broad coverage of newsgathering records in the hands of third parties, but raised additional issues over the wording of some of the provisions. The News Media Dialogue Group, which was created by Holder in the July report, worked with Holder and Justice officials to amend some of the language in the rules. Revised rules were subsequently released on Jan. 14, 2015.

I know that many journalists do not think Holder went far enough, but this hardly sounds like an Attorney General who is (as Risen tweeted) “the greatest enemy of press freedom in a generation.” Third, Holder could have called Risen to testify in the Sterling case – the law was clearly on his side, and DOJ attorneys wanted him to do it.  But Holder directed his lawyers to let Risen off the hook.  It is simply wrong to say (as Risen did) that Holder was doing the “bidding of the intelligence community” or sending “a message to dictators around the world that it is okay to crack down on the press and jail journalists.”  Quite the contrary. Fourth, Risen’s complaints about Holder rest in part on the fact that Holder has presided over many more leak prosecutions than any prior Attorney General.  I suspect that any Attorney General would have ramped up the leak prosecutions in light of the unprecedented cascade of deep secrets from the government in the last decade.  And the ratio of leak prosecutions to leaks remains tiny.  But in any event, it must be true that these prosecutions have had a chilling effect on leakers (i.e. sources) and in that sense made journalists’ jobs harder.  Of course chilling criminal leaks is the whole point of the prosecutions.  They do not “wreck” the First Amendment if they are consistent with the First Amendment, which they are, especially since the prosecutions have not had any noticeable macro effect on the steady flow of secrets out of the government.  Note also that Risen and other journalists tend not to talk about the countervailing norms that have moved dramatically in journalists’ favor in the last decade.  (I have written about this extensively, here and here and here and here.)  Not only has the government significantly raised the bar for going after journalists’ sources, but it has also made clear what was not clear a decade ago: it will not prosecute journalists for publishing classified information in clear violation of 18 USC 798.  Given this change in norms and the structural factors pushing secrets out (size of bureaucracy, digitalization of secrets, and the like), it is very hard to conclude that the advantage on secrecy versus transparency has shifted to the government under Holder. Fifth, Risen’s clearly contra-factual criticisms of Holder reveal how super-allergic journalists are to the accountability that they insist on, and see themselves as guardians of, in every context except where their power is at stake.  Journalists wield enormous power in our society but are among the least accountable of powerful actors – under law and in fact – precisely because the First Amendment gives them leeway to operate for the benefit of our democracy.  As I wrote last year:

Although I believe the press serves an invaluable role in the super-secretive Forever War, I do not think that the press itself is or should be immune from accountability, and I never cease to be amazed by the arguments for non-accountability under law made on its behalf.  … Journalists play a vital role in our democracy in reporting national security secrets.  But the value in this reporting is not absolute.  There are other competing values, including national security, secrecy, and the enforcement of duly enacted criminal laws.  These competing values have often given way since 9/11 to the value of reporting secrets to the public, and the norms and legal constraints on journalists are much looser now than a dozen years ago.  But the law still allows journalists to be subpoenaed to disclose their sources in certain cases.  Journalists and their supporters want to go further and receive immunity from all legal accountability in reporting national security secrets – a position that journalists would tolerate in no other context.

I would love to be educated if I am wrong about any of the above points, and invite journalists to weigh in on Lawfare.