DOJ Bans Seizure of Reports’ Records in Leak Investigations
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AG Garland Formally Bans Seizure of Journalists’ Records in Leak Investigations

AG Merric Garland speaking at podium.

U.S. Attorney General Merrick Garland on Monday formally prohibited federal prosecutors from secretly obtaining reporters’ records in connection with leak investigations except in limited circumstances. The policy marks a stark shift from previous administrations, which had been criticized for becoming increasingly hostile to journalists with sources inside the government.

“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 newsgathering activities,” the DOJ announced in a memo. The prohibition applies to “compulsory legal process issued to reporters directly, to their publishers or employers, and to third-party service providers” regardless of whether the process seeks “testimony, physical documents, telephone toll records, metadata, or digital content.”

The new policy does not apply when a member of the news media is “under investigation for a violation of criminal law, such as insider trading,” per the DOJ. “Nor does it apply to a member of the news media who has used criminal methods, such as breaking and entering, to obtain government information.”

The policy change keeps a promise Garland made in June when he said the DOJ would be strengthening internal policies against seizing reporters’ records while investigating possible internal leaks. That promise came on the heels of reports confirming that the Trump administration in 2020 had obtained phone records from journalists at three major news organizations—The Washington Post, The New York Times, and CNN—in pursuit of leak investigations.

According to a report from the Times, the outgoing Trump administration and the nascent Biden administration both pursed a secret court battle to obtain the emails of four Times reporters. The Biden administration informed Times executives about the case—which had been kept secret by the Trump administration—but also imposed a gag order prevent the public from learning about the legal battle.

Following the revelations, President Joe Biden issued a statement condemning the policy of seeking to seize journalists’ records, saying it was “simply wrong” and promising to end the practice under his watch.

The policy was immediately praised by journalist advocates.

The Obama administration and then-Attorney General Eric Holder had previously come under fire when it was revealed that phone records from journalists with the Associated Press had been seized in connection with a leak investigation.

“The attorney general has taken a necessary and momentous step to protect press freedom at a critical time,” Bruce Brown, the executive director of the Reporters Committee for Freedom of the Press, said in a statement via Twitter. “This historic new policy will ensure that journalists can do their job of informing the public without fear of federal government intrusion into their relationships with confidential sources.”

Read the full DOJ memo here.

[image via Chip Somodevilla/Getty Images]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.