Attorney General Formally Bans The Collection Of Journalists’ Records During Leak Investigations
from the hopefully-it-won't-be-replaced-when-the-AG-is-replaced dept
The early months of 2021, following Trump’s loss at the polls and the subsequent raid of the Capitol building by his supporters, were periodically punctuated by disturbing revelations about the DOJ under the former reality show star.
A regime change ended that. The DOJ, under Merrick Garland, began informing journalists whose phone and other communication records had been sought by the previous iteration of the DOJ. Following these reports, the DOJ declared it would stop targeting journalists during leak investigations, aligning itself with similar statements made earlier by newly elected president Joe Biden.
All well and good, but a public statement is not a policy change. It is also not codification of the DOJ’s newly embraced principles. And whatever was put into place by this Attorney General could easily be removed by the next.
Fortunately, AG Garland has continued to take steps to ensure the DOJ and its components steer clear of journalists during leak investigations. First, he stated the DOJ would support any legislation that codified a ban on targeting journalists. Then he made his previous statements more official by issuing a memorandum making it clear journalists were off limits, instituting a ban on this investigatory tactic.
Now, more than a year later, AG Garland has converted his previous actions into a formal ban on seeking journalists’ records.
The Justice Department on Wednesday formally banned the use of subpoenas, warrants or court orders to seize reporters’ communications records or demand their notes or testimony in an effort to uncover confidential sources in leak investigations, in what amounts to a major policy shift.
The rules institutionalize — and in places expand — a temporary policy that Attorney General Merrick B. Garland put in place in July 2021, after the revelation that the Justice Department, under Attorney General William P. Barr, had secretly pursued email records of reporters at The New York Times, The Washington Post and CNN.
This formalized ban seals off most of the loopholes, severely limiting exceptions to this new rule. Exigency remains in play, but only when “necessary to prevent an imminent or concrete risk of death or serious bodily harm.” Journalists can also be targeted if they’re deemed an agent of a foreign power or terrorist group. And journalists can still be investigated for criminal acts, just like everyone else. What they can’t be investigated for is obtaining and publishing leaks. And they can’t be used as a backdoor search to identify government employees who have leaked documents.
There are also some surprising additions to the ban on targeting journalists, although we’ll have to wait and see if the DOJ will publicly confirm these alterations and whether it will actually respect the new “whoa if true” policies when they present themselves.
According to participants, the Justice Department originally intended to define it in a way that was limited to the passive receipt of government secrets. But the final version now covers the act of pursuing information.
This is big because some First Amendment court cases have resulted in judges finding the publication of leaks to be protected speech but the actions taken to obtain the documents illegal.
This is the huge one:
The Justice Department is also said to have removed espionage from a list of criminal activities that are excluded from protected news gathering.
Espionage prosecutions are pretty much the US judicial system agreeing the public’s interests are best served by a kangaroo court. Defendants are not allowed to raise any sort of public interest defense and the government pretty much gets to decide what evidence the accused has access to when preparing their defense. If this has been excluded, it means the DOJ will no longer be able to pursue bullshit espionage charges just because a journalist managed to obtain and publish sensitive national security related information.
The other good news is that the DOJ will not try to define who is or isn’t a journalist. Since nearly anyone can be, given the reach of the internet, the DOJ has wisely chosen to make this determination on a case-by-case basis, rather than limiting these new protections to members of legacy media outlets.
While the regulation is limited to members of the news media, the department did not define that term — a notoriously murky task in the internet era, when anyone can disseminate information.
The regulation instead says that when that person’s status is in question, the head of the department’s criminal division will decide. It also says if that official finds “genuine uncertainty” on whether an act falls within the scope of news gathering, the attorney general then intervenes.
These are the codified policies going forward. The steps taken by the Attorney General make it much more difficult for successive DOJ heads to roll them back. However, it would still take an act of Congress to make this ban the law of the land, and that sort of effort seems unlikely when many elected officials are openly hostile to members of the press.
These changes reflect an end of an era for the DOJ and its components. For years, journalists have been granted a little bit of deference, but that tended to evaporate quickly when agencies and presidents decided the best way to plug leaks was to target the people publishing leaked documents. The standard M.O. is no longer acceptable. Hopefully, this will be a permanent change for the DOJ — one that can withstand the whims of future Attorneys General less likely to view journalists as contributors to the security of democracy, even when their publications expose the dirty laundry of those securing the nation.