Remember Judith Miller? She is the former New York Times reporter who in 2005 spent almost three months in jail because she refused to identify the government source who leaked the name of CIA operative Valerie Plame.
Attorney General Jeff Sessions on Friday raised the prospect that more journalists will have to make the same decision Miller did — out the source or go to jail — when he said the Justice Department is “reviewing policies affecting media subpoenas” as part of the Trump administration’s effort to crack down on leaks.
“I’ve listened to our career investigators, FBI agents and others and our prosecutors about how to most successfully investigate and prosecute these matters,” Sessions said at a news conference. “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.”
Sessions has come under harsh criticism from President Trump, who accuses him of (among other things) not doing enough to plug leaks. It's ironic, then, that journalists’ top defender against subpoenas that would require them to reveal sources was once Vice President Pence, who as a congressman took an interest in Miller's case and in 2007 proposed a federal shield law to protect journalists.
A quick review of the Miller episode:
A grand jury investigating whether the leak of Plame’s name violated a federal law against disclosing the identities of covert agents issued a subpoena demanding that Miller reveal her source. The probe sought to determine whether the leak was a retaliation against Plame’s husband, former diplomat Joseph C. Wilson IV, who had publicly criticized the George W. Bush administration’s justification for invading Iraq.
Miller was not in danger of prosecution. The landmark Pentagon Papers Supreme Court case established the right of reporters to publish classified information provided to them. But the person on the giving end of the leak was in legal jeopardy, and the grand jury wanted to know who that person was.
Miller refused to comply with the subpoena and was held in contempt of court for 85 days. Her source, I. Lewis “Scooter” Libby, Vice President Richard B. Cheney’s chief of staff, ultimately released her from their confidentiality agreement and was convicted in 2007 on charges related to the leak.
Miller, now a Fox News contributor, wrote last year about how Pence, then a Republican congressman from Indiana, invited her to his office upon her release from jail and promised to push for a shield law:
True to his word, Mr. Pence introduced the “Free Flow of Information Act” with Democratic Rep. Rick Boucher of Virginia. “As a conservative who believes in limited government,” he said after reintroducing the legislation, which failed the first time he proposed it, “I believe the only check on government power in real time is a free and independent press.”
Pence’s bill was far from perfect. The language describing when reporters would be forced to reveal sources on national security grounds was far broader than I would have liked. First Amendment purists attacked it then and now as being too loose, noting that most politically sensitive cases ensnaring reporters and classified information involve “national security” information.
Yet writing in The New Yorker, even Steve Coll, the dean of the Graduate School of Journalism at Columbia University who is no fan of Mr. Pence’s, called the legislation “politically plausible … ” and “much, much better than the status quo.” The bill was also endorsed by the Society of Professional Journalists.
In 2007, the Columbia Journalism Review called Pence “journalism’s best ally in the fight to protect anonymous sources.”
In the end, however, Pence failed to secure passage of his shield law, and there is still none in place. That is one reason that Sessions now has the power to subpoena journalists.