WASHINGTON (CN) — Marking a win for media rights, the Department of Justice announced a new rule Monday blocking federal prosecutors from secretly seizing journalists’ records during leak investigations.
The practice has been commonplace, and controversial, for both Republican and Democratic administrations, coming to a head last year in wake of reports that the Trump administration had seized phone and email records of journalists at The Washington Post, The New York Times and CNN while it looked into sources on the Russia investigation as well as other national security matters.
Members of Congress and their staffers also were implicated in the records seizure, along with the children of targets, and attorney Don McGahn who previously served as President Donald Trump’s White House counsel.
In a memo to department leadership Monday, Attorney General Merrick Garland said the department would reverse its longstanding precedent of using a procedural balancing test that weighed investigating classified information leaks against press freedom.
“The United States has, of course, an important national interest in protecting national security information against unauthorized disclosure,” Garland explained. “But a balancing test may fail to properly weight the important national interest in protecting journalists from compelled disclosure of information revealing their sources, sources they need to apprise the American people of the workings of the government.”
Garland had promised in June to revise the policy after President Joe Biden had already condemned it “simply, simply wrong.”
Media advocates like Bruce Brown, executive director of the media watchdog organization Reporters Committee for Freedom of the Press, praised Monday's formal announcement.
“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,” Brown said in a statement.
Brown was one of the media representatives whom Garland and his department’s senior staffers met with in June to discuss what new rules should look like after Biden announced intentions of revising the rule.
Trevor Timm, executive director of the Freedom of the Press Foundation, agreed in June that the policy change could mark a stop in some of the erosions of press freedoms.
“Over the past decade — spanning multiple administrations run by both parties — the Justice Department has increasingly spied on reporters doing their job, casting a chill over investigative reporting and putting countless whistleblowers at risk,” he recounted, also encouraging Congress to immediately enshrine any new rules the department would make into law “to ensure no administration can abuse its power again.”
Until the Department of Justice regulation is finalized, the memo stipulates that the deputy attorney general should be consulted when questions arise about its application. It also clarifies that there are exceptions to the policy like when a journalist takes part in ordinary criminal activity, like insider trading, or when the information at stake could prevent an “imminent risk of death or serious bodily harm,” as in the cases of kidnapping for example.
The policy also does not apply, according to the memo Monday, “to an entity or individual who comes within the small category of those to which the protections of the current regulations do not extend, such as an agent of a foreign power or a member of a foreign terrorist organization.”
Before Trump, leak investigations proved controversial for President Barack Obama as well. Obama’s Attorney General Eric Holder revised the Justice Department’s leak-investigation policy after the secret seizure of phone records belonging to Associated Press reporters and editors triggered public outcry.
In 2017 Jeff Sessions, Trump’s first attorney general, announced a leak crackdown regarding the administration’s investigation into 2016 Russian election interference efforts.
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