US issues ban on federal prosecutors seizing journalist records

US Attorney General Merrick Garland on Monday formally prohibited federal prosecutors from seizing the records of journalists in leak investigations, with limited exceptions, reversing years of department policy.

The new policy largely codifies the commitment Garland made in June, when he said the Justice Department would abandon the practice of seizing reporters’ records in investigations of government leaks to the news media.

It aims to resolve a politically thorny issue that has long vexed Justice Department prosecutors trying to weigh the media’s First Amendment rights against the government’s desire to protect classified information.

“A free and independent press is vital to the functioning of our democracy,” the memo says. “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.”

But the memo makes clear that federal prosecutors can, in some cases, seize journalists’ records, including if the reporters are suspected of working for agents of a foreign power or terrorist organisations. There is also an exception for situations with imminent risks, like kidnappings or crimes against children.

A journalist who is the target or subject of a criminal investigation, for instance, can still have his or her records seized in matters not connected to their “newsgathering activities”, as can someone who has used “criminal methods” to obtain the information.

However, the policy makes it clear that prosecutors cannot subpoena a reporter’s records merely because the reporter possesses or publishes classified information.

DOJ Formally Adopts New Policy Restricting Use of Compulsory Process to Obtain Reporter Informationhttps://t.co/9Dpyn5rvC0

— Justice Department (@TheJusticeDept) July 19, 2021

Garland was moved to act following an outcry over revelations that the department during the Trump administration had obtained records belonging to journalists at The Washington Post, CNN and The New York Times as part of investigations into who had disclosed government secrets related to the Russia investigation and other national security matters.

Others whose records were obtained were members of Congress and their staffers and former White House counsel Don McGahn.

Garland’s announcement came after President Joe Biden said he would not allow the Justice Department to seize journalists’ phone records and emails, calling the practice “wrong”. Since then, Garland and other senior Justice Department staffers have met with representatives of news media organisations, with both sides agreeing on the need for new department policies. Garland has also said he would support federal legislation to add additional protections for journalists.

The move was immediately praised by media advocates.

“The attorney general has taken a necessary and momentous step to protect press freedom at a critical time,” said Bruce Brown, the executive director of the Reporters Committee for Freedom of the Press. “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.”

Leak investigations have long challenged department officials, resulting in policy changes in the last decade as well as pushback from media groups against government encroachment into their work.

Following an uproar over actions seen as aggressively intrusive into press freedom, President Barack Obama’s attorney general, Eric Holder, announced revised guidelines for leak investigations in 2013.

The Obama administration, in which Biden served as vice president, was sharply criticized by media groups after it was revealed that numerous Associated Press journalists’ phone records were obtained in a leak investigation.

Jeff Sessions, President Donald Trump’s first attorney general, announced in 2017 a leak crackdown following a series of disclosures during the investigation into Russian election interference.