BOB GARFIELD: From WNYC in New York, this is On the Media. Brooke Gladstone is away this week. I’m Bob Garfield.
The Trump administration's dogged pursuit of all things leaky ramped up last week with Attorney General Jeff Sessions announcing a renewed investigative effort from within his Justice Department.
ATTORNEY GENERAL JEFF SESSIONS: Since January, the department has more than tripled the number of active leak investigations, compared to the number pending at the end of the last administration.
BOB GARFIELD: And while the White House has made no secret of its disgust with the mainstream media, Sessions hinted at a new potentially punitive response to the publishing of unwelcome disclosures.
ATTY. GEN. SESSIONS: 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.
BOB GARFIELD: Days later, Deputy Attorney General Rod Rosenstein was obliged to at least try to soften his boss’s ominous warning.
DEPUTY ATTY. GEN. ROD ROSENSTEIN: We don’t prosecute journalists for doing their jobs 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.
BOB GARFIELD: Oh, really? Is the president on board with that?
MALE CORRESPONDENT: The president told Comey he should throw journalists in jail.
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BOB GARFIELD: What is clear is that the administration is determined to plug the leaks that have so embarrassed it from the beginning, and existing law does provide leeway to crack down on journalists in the process.
Dana Gold is director of Education & Strategic Partnerships at the Government Accountability Project. Dana, welcome to OTM.
DANA GOLD: Thank you for having me, Bob.
BOB GARFIELD: Now, most anonymous sources, the vast majority, are never unmasked, so for the government, often the only way to identify the source of a leak is through the journalists themselves, and they are not necessarily protected.
DANA GOLD: That's right. It's a common misperception that there is a legal protection, like the attorney-client privilege, like, you know, if I'm talking to a client as an attorney we have codified protections that are pretty inviolate. I think there's a myth that that exists between a journalist and a source. It’s actually more norm than law.
BOB GARFIELD: Some states have shield laws, but there is no national shield law that says you do not have to reveal your source, whatever oath you may have made to that source to get the information. There have been prosecutions of reporters for passing along classified information and, you know, you don't have to go to Nixon. The Obama administration took a pretty hard line.
DANA GOLD: Yeah, the Obama administration was actually terrible for whistleblowers and for journalists, at least in the intelligence community context. You know, under the Obama administration there were more prosecutions of employees under the Espionage Act than in all of the administrations combined. That was true, obviously, in terms of going after and subpoenaing journalists, as well, and that was the, the whole issue with the press and Eric Holder, kind of coming to terms about renegotiating and figuring out how to make sure that the interests of the press are protected, in light of these ramped- up prosecutions of intelligence whistleblowers.
BOB GARFIELD: Now, if the Trump administration wished to, it could, in every particular case, in every particular story, if it found that a law has been broken in passing on secrets, it could go to every reporter in a jurisdiction where there are no shield laws and say, you know, either give me the information or go to jail and think it over.
DANA GOLD: Right, no, that’s right. And, you know, journalists have been phenomenal in kind of making the norm so strong that they won't comply with the subpoena and they will sit in jail. I mean, otherwise, they’re dead in the water as having integrity as a journalist. It’s like the threat of prosecution for whistleblowers. It’s an incredibly chilling move to make. And the threat of prosecution of journalists, that will have a chilling effect, not just on the journalists but also on sources willing to talk to journalists.
BOB GARFIELD: Much of what is now the Russia investigations in both houses of Congress and the FBI hinges on early stories based on anonymous sourcing, based on highly-classified intelligence intercepts, the release of which was, you know, clearly a breach of the law --
DANA GOLD: Mm-hmm. [AFFIRMATIVE]
BOB GARFIELD: -- that may or may not be covered by whistleblower protection. But, the administration claims that this kind of reporting puts lives at stake. Is there any evidence that, never mind anyone being killed, but has anyone been put at risk or any military or intelligence operation put at risk because of these revelations?
DANA GOLD: No, not that I know of, and, and that’s actually why, you know, when Jeff Sessions talked last Friday and, you know, kind of invoked this comment, that saying journalists cannot place lives at risk with impunity, you know, that was a really chilling statement. You know, just that rhetoric is wrong and irresponsible.
BOB GARFIELD: I wonder if, even though it's a Republican majority in both houses, at some point they get fed up with the misdirection and the blaming the messenger and they actually get in the press protection business, can you even imagine that taking place?
DANA GOLD: Yeah, I, I can, actually. I think that if we see this ramped-up prosecution, I think that's what you're going to see. You’re gonna see fighting back of these attacks on the press. You know, the protection of journalists and the role of journalists and the role of whistleblowers are essentially two sides of the same coin, and we have seen all of the whistleblower protection legislation that has been passed has been passed almost unanimously with bipartisan support. I mean, Chuck Grassley is like one of the biggest proponents of whistleblower protection. I mean, it’s like the hidden secret of Washington. Like, nobody says that employees should not have the right [LAUGHS] to disclose wrongdoing. It's the best mechanism to hold our institutions accountable, our ethical employees with the right to raise concerns, free from reprisal.
So I see, you know, this whole attack on leakers, the right answer should be not to focus on the leaks but to create new protections for intelligence community whistleblowers. You know, until that happens, we’re going to also need protections of journalists. So I think this is actually a really potentially ripe opportunity to address both of those issues. I think that journalists and whistleblowers are the two backbones of what is holding us together right now.
BOB GARFIELD: Can you envision two parallel sets of prosecutions going on, one against the inner circle of the Trump campaign and the White House, while simultaneously the administration is lashing out legally at the messengers? Is that what we’re looking at?
DANA GOLD: Yeah, I think we’re in a race where we’re gonna to see the administration, as long as they are in power, exercise their power to try to control information and chill journalists and, you know, chill their workforce to stop unauthorized leaks or information that they don't want to see out. That’s gonna continue.
At the same time, I think you're absolutely right. You know, we have an impaneled grand jury and we have two congressional investigations ongoing, and we could be looking at impeachment. It seems like this literal neck-and-neck horserace right now, not neck in neck, actually. I think that right now the Trump administration has more power. But I think your vision is exactly what we might be looking at.
BOB GARFIELD: Dana, thank you very much.
DANA GOLD: Oh, thank you. This was so great. I really enjoyed talking to you, Bob.
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BOB GARFIELD: Dana Gold is director of Education & Strategic Partnerships at the Government Accountability Project.
Coming up, navigating the deportation archipelago. This is On the Media.