WASHINGTON (CN) - In the nearly 100 years since enactment of the 1918 Espionage Act, the government has chosen – out of respect for press freedom – not to prosecute journalists.
That harmony skipped a beat last week, however, when the Justice Department announced it would review media-subpoena policies to address the leaky faucet of classified leaks.
Although Deputy Attorney General Rod Rosenstein wasted little time in walking back the agency’s Aug. 4 announcement, saying Sunday that the DOJ won’t prosecute journalists, national-security attorney Mark Zaid warned that this policy choice should not be mistaken for a legal one.
The Espionage Act “absolutely allows” for the criminal prosecution of journalists, Zaid said. "There's no exception at all that would give any type of cover legally under the First Amendment, or statutorily, for journalists," he added.
Zaid, a Washington attorney who represents government whistleblowers at Mark S. Zaid & Associates, would not deny that the government has a right to pursue classified leaks.
"It's a crime,” he said. “It should be investigated.”
Where the attorney needs convincing, however, is that the Trump administration can break new ground when it comes to pursuing leaks.
Though the Justice Department reported that leak investigations have tripled in the last six months, Trump has a long way to go to catch up with his predecessor.
The Obama administration used the Espionage Act to pursue eight leak cases - more than all other administrations combined - including several that swept up journalists.
In addition to secretly subpoenaing the emails and phone records of Associated Press journalists, the Obama Justice Department labeled Fox News reporter James Rosen an unindicted co-conspirator in one leak case.
And in a hold-over case from the George W. Bush administration, the DOJ in 2011 renewed a subpoena for New York Times journalist James Risen to testify in the leak trial of former CIA officer Jeffrey Sterling. The DOJ dropped the subpoena after Risen refused to identify his sources, but these cases provoked a backlash from journalism and civil-rights groups that viewed them as a war on press freedom.
After the New York Times reported on the secret subpoena of AP records, Zaid said, the DOJ "had egg on their face.” This prompted then-Attorney General Eric Holder to tighten up media-subpoena policies, making it more difficult for prosecutors to pursue media-leak investigations.
Holder’s policies are the very ones that Attorney General Jeff Sessions scheduled last week for review. Still, Zaid said, the agency is free to pivot.
"They're policies, they're guidelines," Zaid said. "The Justice Department could always change them whenever it wants."
Skeptical of claims that the leaks have heralded a so-called war on the press, Zaid noted that U.S. journalists and newspapers aren’t being raided or shut down.
It would concern him though if the DOJ decides to only investigate leaks embarrassing to the Trump administration from publications viewed as anti-Trump.
"People leak to Fox News classified information," he said. "Are any of those stories going to be investigated or is it only going to be The New York Times and Washington Post?”
Plotting a Course for Uncharted Waters
While the First Amendment contains an explicit protection for the freedom of the press, the University of North Carolina’s Michael Gerhardt said the guarantees of that protection has always been a moving target.