Attorney General Merrick Garland instituted a new policy restricting the Justice Department’s use of compulsory processes such as subpoenas to seize information from members of the media following revelations about Trump DOJ efforts to get to the bottom of leaks of classified information.
The memo authored by Garland put in place new policies to limit the government’s ability to obtain information, records, or documents from members of the media through the courts, directed Deputy Attorney General Lisa Monaco to undertake a review to codify the new policy, and called on Congress to put together legislation to give these media protections the force of law.
“The Department of Justice will no longer use compulsory legal process for the purpose of obtaining information from or records of members of the news media acting within the scope of news gathering activities,” Garland announced Monday. “This new prohibition applies to compulsory legal process issued to reporters directly, to their publishers or employers, and to third-party service providers of any of the foregoing. It extends to the full range of compulsory process covered by the current regulations, specifically, warrants, court orders, … and civil investigative demands. Further, it applies regardless of whether the compulsory legal process seeks testimony, physical documents, telephone toll records, metadata, or digital content.”
Outlets such as the New York Times, the Washington Post, and CNN said this year that the Trump DOJ had seized records from reporters as investigators tried to find the source of classified leaks. The Biden DOJ initially defended the seizure of reporter records, with a DOJ spokesman saying that “while rare, the Department follows the established procedures within its media guidelines policy when seeking legal process to obtain telephone toll records and non-content email records from media members as part of a criminal investigation into unauthorized disclosure of classified information.”
Garland noted the new prohibition does not apply to any journalist “who is the subject or target of an investigation when that status is not based on or within the scope of newsgathering activities” nor when a reporter is “under investigation for a violation of criminal law” or has “used criminal methods, such as breaking and entering, to obtain government information.” The AG said the new restrictions also do not affect DOJ’s “traditional ability to use compulsory legal process to obtain information from or records of, for example, a government employee (rather than a member of the news media) who has unlawfully disclosed government information.” And, Garland said, “This prohibition also does not apply to an entity or individual who comes within the small category of those to which the protections of the current regulations do not extend, such as an agent of a foreign power or a member of a foreign terrorist organization.”
Following direction from President Joe Biden, the Justice Department said in June it would no longer seek court orders to obtain records from journalists just “doing their jobs,” following revelations about Trump administration leak investigations.
When Biden was vice president, the Justice Department also seized reporter records during leak investigations. The Obama DOJ prosecuted nine leak cases, more than every previous administration combined, and Trump turned up the heat further.
“Because a free and independent press is vital to the functioning of our democracy, the Department of Justice has long employed procedural protections and a balancing test to restrict the use of compulsory process to obtain information from or records of members of the news media,” Garland said Monday. “There are, however, shortcomings [of] any balancing test in this context. The United States has, of course, an important national interest in protecting national security information against unauthorized disclosure. But a balancing test may fail to properly weight the important national interest in protecting journalists from compelled disclosure of information revealing their sources, sources they need to apprise the American people of the workings of their government.”
The Department of Justice’s top watchdog announced in June it is looking into recent revelations the DOJ sought subpoenas against Democratic members of Congress or its staffers, as well as against reporters, as part of the investigation into alleged leaks of classified information to the media.
Garland said Monday he wanted the changes he was implementing to be made permanent.