Attorney General Merrick Garland moved on Wednesday to largely block the Department of Justice from using subpoenas to seize the records of journalists in government leak investigations.
The memo formalizes an interim policy announced in July of last year after it was revealed that the Justice Department under the Trump administration not only sought journalists’ records but also secured gag orders to prevent them from being notified.
“These regulations recognize the crucial role that a free and independent press plays in our democracy,” Garland said in a statement accompanying the policy.
“Because freedom of the press requires that members of the news media have the freedom to investigate and report the news, the new regulations are intended to provide enhanced protection to members of the news media from certain law enforcement tools and actions that might unreasonably impair newsgathering.”
The Justice Department in June 2021 notified reporters it received phone records from CNN, The Washington Post and The New York Times, while email logs were also obtained for CNN.
The investigations were all tied to the news outlets’ reporting in the early days of the Trump administration, including an investigation into whether former FBI Director James Comey shared details with reporters about a document that influenced his decision to close an investigation into 2016 Democratic presidential nominee Hillary Clinton.
Though the initial subpoenas and gag orders were secured under former President Trump, the department continued to push for gag orders in two cases even after President Biden called the seizure of journalist records “simply wrong.”
The formalized policy garnered praise from journalism and free speech groups despite concerns over some limitations of the rule.
“This is a watershed moment,” Bruce D. Brown, executive director of the Reporters Committee for Freedom of the Press, said in a statement.
“The new policy marks a historic shift in protecting the rights of news organizations reporting on stories of critical public importance. For the last several years we have worked with newsrooms to push for meaningful reform and are grateful to the Justice Department officials who saw this new rule over the finish line.”
But the rule does not completely bar the practice of subpoenaing journalists, nor does it seek to define who is one, a more complicated undertaking at a time where newsgathering is hardly confined to mainstream media outlets.
The department can still seek journalists’ records if they are suspected of committing a crime or working on behalf of a foreign adversary, or if there is an imminent risk of death or harm.
“This is a good policy that provides important protections for journalists doing work the public needs them to do,” Anna Diakun, a staff attorney with the Knight First Amendment Institute at Columbia University, said in a statement.
“Still, the policy doesn’t make clear who qualifies as a ‘member of the news media,’ though the policy’s protections hinge on this term. It’s also not entirely clear whether the protection for ‘newsgathering’ covers reporters who ask sources to share classified information, though this practice is a critical part of national security journalism. Finally, the policy does not address the targeting of journalists using national security laws. Despite these shortcomings, this policy is a victory for press freedom and lays a foundation for further reform.”
Updated at 9:40 a.m.