Attorney general nominee William Barr — much like his predecessor Jeff Sessions — declined to offer a definitive response about whether or not he would jail journalists when pressed on the issue during his Tuesday confirmation hearing.
“If you’re confirmed, will the Justice Department jail reporters for doing their jobs?” Sen. Amy Klobuchar (D-MN) asked Barr, who has faced heavy scrutiny for his stance on special counsel Robert Mueller’s investigation into Russian election interference.
Barr did not reject the possibility of jailing journalists outright. Instead, he said that it would likely be a “last resort,” but noted that there were situations where he could envision it happening.
“Uhh,” he said, after a pause, “I know there are guidelines in place, and I can conceive of situations where, 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 would be held in contempt.”
The question was a provocative one from a likely contender for the Democratic nomination in 2020. It also tapped into a long-running debate about using the 1917 Espionage Act to target journalists and others, including Edward Snowden, an issue that has flared up in both Republican and Democratic administrations.
It’s an issue that has become more pronounced under Trump, when Sessions, his first attorney general, signaled that DOJ could step up efforts to track down government employees leaking to the media. Barr’s response heavily echoes the one that Sessions provided during a Senate Judiciary hearing in October 2017, when Klobuchar asked the same question. At the time, Sessions said he couldn’t offer a “blanket commitment” to not jail journalists, citing possible national security concerns.
Klobuchar emphasized Tuesday that she was interested in getting Barr’s take because Sessions had previously considered changes to the DOJ’s rules for journalists. In the summer of 2017, Sessions said he was interested in tweaking the rules around DOJ subpoenas of journalists. As a report in the Hill recently indicated, some of these changes still appear to be under consideration and would “lower the threshold that prosecutors must meet before requesting subpoenas for journalists’ records.”
The Obama administration was known for taking a particularly aggressive approach to prosecuting government employees who leaked to journalists. Under Obama, the DOJ charged eight people who provided information to journalists about national security programs, ultimately jailing several of them.
Given Trump’s pervasive attacks on the press — outlets he’s characterized as the “enemy of the people” — there have been concerns that his administration will only continue to follow suit. Barr’s oblique response on Tuesday did little to ease them.