After Multiple Reports Of DOJ Targeting Journalists' Communications, The DOJ Finally Says It Will Stop Targeting Journalists
from the free-press-(temporarily)-removed-from-the-govt's-shitlist dept
The DOJ — following President Biden’s lead — has declared targeting journalists’ communications is officially off-limits. Biden’s statement followed reports of two separate instances where his predecessor’s DOJ tried to obtain email and phone records belonging to journalists working for the Washington Post and CNN.
More recently, it was revealed a leak investigation instigated by Trump’s DOJ targeted New York Times’ journalists. That one continued into 2021 under new Attorney General Merrick Garland. In that case, the government was seeking the source of leaks involving the FBI’s investigation of Hillary Clinton’s private email server but was unable to obtain anything after Google challenged the subpoena.
The subpoenas for the NYT journalists’ records were withdrawn by the DOJ hours after that story broke, with Biden’s press secretary claiming the Administration was not aware the DOJ and FBI were still pursuing this information.
As appropriate given the independence of the Justice Department in specific criminal cases, no one at the White House was aware of the gag order until Friday night [June 4]. While the White House does not intervene in criminal investigations, the issuing of subpoenas for the records of reporters in leak investigations is not consistent with the President’s policy direction to the Department, and the Department of Justice has reconfirmed it will not be used moving forward.
This would align the DOJ with Biden’s statement on targeting journalists. But there’s another group of people in need of some protection from the DOJ’s investigative methods: readers of news sites. Yet another DOJ investigation involving journalism was exposed late last week. In that one, the FBI targeted readers of USA Today reporting on a child porn raid that ended in the deaths of two FBI agents and the suspect they were seeking. Gannett News attempted to quash the subpoena, noting the FBI had apparently violated the DOJ’s rules on targeted First Amendment activity.
That subpoena has now been officially withdrawn by the DOJ. And the FBI has admitted it was able to identify the suspect it was seeking by using other methods, which does nothing to explain why an agent working for the FBI’s child exploitation task force thought it was a good idea to obtain information about readers of a story where a child porn suspect opened fire on agents (killing two of them) prior to being killed himself.
That last withdrawal accompanies the DOJ’s first public statement on the subject. It appears this DOJ will be the first in a long, long time (or perhaps ever) to respect the First Amendment, rather than look for ways to work around it.
In a separate statement, Justice Department spokesman Anthony Coley said that “in a change to its longstanding practice,” the department “will not seek compulsory legal process in leak investigations to obtain source information from members of the news media doing their jobs.”
He added: “The department strongly values a free press, protecting First Amendment values, and is committed to taking all appropriate steps to ensure the independence of journalists.”
What’s left unsaid here is how the DOJ will define journalism and journalists. There are plenty of independent journalists who cultivate sources and report on events that involve ongoing federal investigations. Leakers will continue to leak and presumably — given Biden’s tour as VP for noted leak-hunter Barack Obama — the government will still seek to identify and prosecute them.
But this is the first public statement made by a DOJ official that says something other than the DOJ will respect free speech rights to the extent its internal guidelines suggest it should. Historically, that range has been “barely” to “not at all.” If the DOJ is serious about respecting these rights, it’s obviously going to make it more difficult to hunt down leakers. But constitutional rights are rights, not things to be set aside whenever they inconvenience federal law enforcement agents. Hopefully, this pledge will last longer than the current administration.