DOJ’s Cake-Eating on Journalists Will Build Support for Faulty Journalist Shield

As many people have reported, SCOTUS today declined to take Jim Risen’s appeal of the Fourth Circuit’s decision requiring him to testify in Jeff Sterling’s trial. As I noted at the time of the decision, this effectively guts any reporter’s privilege in the circuit that matters: the Fourth Circuit governs the CIA and JSOC.

Now, Risen’s team is calling on DOJ to uphold Eric Holder’s promise of last week, that no journalist engaged in journalism will be prosecuted on his watch.

“As long as I’m attorney general, no reporter who is doing his job is going to go to jail. As long as I’m attorney general, someone who is doing their job is not going to get prosecuted.”

As Kevin Gosztola has noted on Twitter, however, there’s a difference between prosecution and jailing under contempt. So that promise is likely meaningless.

And not only does that put Holder where he wants to be: with the courts on his side, exercising the discretion to jail a journalist or not as he can convince the court.

Furthermore, consider how it creates pressure for Chuck Schumer’s (Administration-backed) badly flawed press shield bill. The bill wouldn’t cover me. It wouldn’t cover Glenn Greenwald. And it would leave James Risen precisely where he is now, subject to a judges ruling on the significance of the information he has.

There was already a lot of support for this bill. But now that the Executive Branch has gained all the leverage where it matters, I imagine there’ll be a greater push to Do Something — even if that just codifies an official press that gets privilege.

On the same day NYT’s Adam Liptak reported this decision, he also did a profile of SCOTUSBlog’s Thomas Goldstein, who — because he doesn’t fit the official model of journalist, in spite of the number of people who rely on his journalism — still can’t get press SCOTUS press credentials. In spite of near universal acknowledgment of the important role SCOTUSBlog plays, the traditional press hasn’t budged, which has helped SCOTUS punt on the issue too.

The closer the press gets to official sanction, the worse the reporting we’ll get.

10 replies
  1. ArizonaBumblebee says:

    This is just one more nail in the coffin that once was the Bill of Rights. Expect more journalists to begin basing themselves in countries where they can’t easily be nabbed by an aggressive prosecutor looking for a trophy. Is it mere happenstance that Glenn Greenwald is operating out of Brazil and his colleague, Laura Poitras, is working from Berlin? I doubt it. As I understand Senator Schumer’s bill, it doesn’t provide any protection for bloggers or news aggregators, such as Matt Drudge. If that’s true, the bill has minimal value to the public and journalistic profession. Some of the most important news stories of recent years have come from revelations on blogs and in news aggregation sites.

  2. scribe says:

    FWIW, EW, you should also note that SCOTUS won a frickin’ Peabody.

    Which, I guess, is as good a reason as any for the official press to be antipathetic.

  3. Ben Franklin says:

    Somewhat surprised so little dust was stirred on this topic. The Elites are lining up for the the hierarchy of shielded journalists. Just like whistleblower protections, there’s no protection from separating from the herd.

  4. Evangelista says:

    The late great President Ronald Reagan is late because he is dead. He is great because he demonstrated the value of “I don’t recall.” in answering any question to which an answer may be demanded or required, including legally required.

    “I don’t recall.” is the first leg of the tripod on which Freedom in the present Commercial United States stands.

    “The NSA ate my electronic notes.” is the second leg of the tripod.

    The third leg, as important as the other two to keep one from being pushed over is to keep a straight face while repeating the above two phrases.

    My advice for how to stand your tripod to withstand a storm of paranoid prosecutor fury is to deplay all three legs in one fling, responding to a demand for information: “I don’t recall, and the NSA ate my electonic notes, wherefore I request a recess, or move for a continuance, to allow the NSA time to search their archives.” Then, after looking the questioner soberly in the eye for two seconds, adding, with patriotic conviction: “I’m sure that you will agree that if they haven’t lost the notes completely they can find them!” Having said the last, you can let your smile loose, trying to make it as sincere as you can. If that isn’t very sincere, don’t worry, at least you won’t be hurting yourself trying to keep it in.

  5. anonymous says:

    With the exception of certain sites like emptywheel, the reporting can’t get any worse . . . if Risen is jailed for contempt, he should take his case to the UN.

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