The pause was eight seconds long, and it included an “ummm.” But the question from Sen. Amy Klobuchar (D-Minn.) to attorney general nominee William P. Barr was unequivocal: “If you’re confirmed, will the Justice Department jail reporters for doing their jobs?” asked Klobuchar, noting that her dad was a journalist and citing the case of Post columnist Jamal Khashoggi, who was killed by the Saudi regime last year.
Once Barr got around to answering the question, he said, “I think that, you know, I know there are guidelines in place. And 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."
At that point, Klobuchar noted that then-Attorney General Jeff Sessions had “said he was going to look at potentially changing those rules at some point, so I’d like you to respond in writing to this,” said Klobuchar. Barr nodded.
Left unsaid in this exchange was the disposition of President Trump on the question of jailing journalists. He’s for it. ″They spend a couple days in jail, make a new friend, and they are ready to talk,” Trump told then-FBI Director James B. Comey, according to a memo written by the latter. The president was cracking wise about how to get the media to out the sources of leaked information.
The guidelines to which Barr referred were a big deal back in 2013, when relations between media organizations and the Obama Justice Department were crumbling. It had emerged that the Justice Department had secretly seized the phone records of the Associated Press and asserted in a search warrant affidavit that it had reason to believe that Fox News correspondent James Rosen was a possible co-conspirator in the alleged violation of the Espionage Act. Two leak investigations, two cases of overreach in dealing with the media.
Though no journalists were jailed, media advocates complained that the Obama Justice Department was criminalizing journalism. So then-Attorney General Eric Holder met with media organizations to seek protections against a government determined to go after leakers. The result was a set of rules crimping the government’s latitude in securing journalists' data.
There things stood until the Trump administration came to town. Sessions declared in August 2017 that the Justice Department was reviewing the guidelines on media subpoenas. Considering that Sessions also indicated that his Justice Department had more than tripled the number of leak investigations from the Obama administration, which tallied a record number of leak prosecutions, the pledge to take a fresh look at the guidelines unsettled First Amendment advocates and, apparently, Klobuchar herself, who called Sessions’s guidelines-review pledge “very concerning.”
As is Barr’s failure to mount an affirmative defense of journalism in response to Klobuchar.