Letter to the Honorable Jefferson B. Sessions III, Attorney General of the United States - Protection of Free Press

Letter

Dear Attorney General Sessions,

I write with great concern regarding a recent report in the New York Times alleging that President Trump suggested to former F.B.I. Director James Comey that he should consider jailing journalists for publishing classified information.[1] This account is among several recent reports of statements attacking and undermining the media.

I am deeply troubled by such reports following a barrage of baseless attempts by the President and members of his administration to discredit the media and to deter accurate press coverage of the Administration's actions and policies. While the press may challenge public officials, calling them "the enemy of the American people"[2] or "the opposition party"[3] is a disservice to our democracy. Threatening draconian actions like criminal prosecution or imprisonment has an intolerable chilling impact, even if those actions are never taken.

At this extraordinary moment in our history, the press is simply serving -- as it has done since our nation's founding -- to uncover and report vital information, expose wrongdoing, and hold officials accountable. A free, unfettered press has always been the hallmark of our democracy. Fear of autocratic censorship led to the First Amendment, which broad, general threats of criminal prosecution violate in spirit if not in law.

President Trump's comments about the media -- not only his alleged direction to Mr. Comey but also other repeated public remarks -- seem calculated to intimidate the press and chill the exercise of First Amendment rights. If he seeks to enlist the Department of Justice (DOJ) to take legal action against the media, I urge you to resist this effort.

As a federal prosecutor and attorney general for my state, I faced challenges posed by disclosures of information to the press that might be seen as damaging or dangerous. When the Abscam investigation was leaked to journalists in the 1980s, I was assigned by the US Attorney General to lead an investigation of these disclosures. We sought as much as possible to avoid action that could inhibit press freedoms. Indeed, we stated clearly that no action would be taken against any reporter, and none would be subpoenaed or even interviewed. Although disciplinary measures were taken against DOJ staff, and a report describing improper conduct was issued, there was no challenge to the role of the press. Even if action is sometimes appropriate against government officials for abridging necessary confidentiality, the press is guaranteed distinct constitutional protections.

I ask that you affirm the administration's respect for such First Amendment protections by confirming you will adhere to, and in no way diminish, existing DOJ guidelines regarding obtaining information from, and investigating and prosecuting, the media, contained in 28 CFR 50.10. As you know, under these guidelines, legal action concerning reporters -- whether subpoenas, questioning or arrest -- can only be taken when necessary to secure information sufficiently important to an investigation, cannot be reasonably obtained in another way and is approved by top DOJ officials, including the Attorney General. These guidelines provide a strong basis for protecting constitutional rights and necessary confidentiality for law enforcement and national security interests.

Thank you for your attention to this matter.

Sincerely,

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