Garland: DoJ will no longer seize reporter records -- unless suspected of a crime

Kevin Dietsch/Pool via AP

An expected move, with the expected media framing surrounding it. Following the exposure of Department of Justice intrusion into reporter communications in leak probes — which has a track record of nearly a decade — Attorney General Merrick Garland announced today that he has ordered new limits on prosecutors to prevent such intrusions. With some exceptions, prosecutors are now forbidden to seek such records from journalists in leak investigations.

Both Politico and the New York Times frame this as a response to the abuses of the previous Trump administration:

The Department of Justice will no longer use compulsory legal processes to seize information from people working in the news media who are acting “within the scope of their newsgathering activities,” Attorney General Merrick Garland announced in a memo on Monday.

This new policy imposes further limits on when the DOJ can seize reporters’ records, a long-debated political issue balancing freedom of the press and government intelligence. The Justice Department under President Biden previously vowed not to secretly investigate reporters’ records. The previous department under Donald Trump seized the records of reporters in secret during a leak investigation, a policy Biden has criticized.

Oddly enough, neither outlet references Barack Obama or Eric Holder, even though the then-AG personally greenlit efforts to go after Fox News reporter James Rosen. That was on the thinnest of pretexts in an effort to find a leaker, a point which was embarrassing enough to prompt Holder to ask Congress for limits on his authority to, er, approve such intrusions on reporting.  Let’s also not forget the DoJ’s apparent hacking of then-CBS reporter Sharyl Attkisson’s computer.

Neither media outlet bothers to mention Garland’s own track record on media freedom. In April, Garland’s DoJ subpoenaed USA Today to get data on its readers, supposedly to track down anyone who took an interest in the story of a shooting that killed two FBI agents. At that time, USA Today publisher Gannett blasted the DoJ for failing to adhere to its own standards in this demand and pointed out the hypocrisy of the Biden administration’s comments about its predecessor:

None of this gets any mention in either report, of course.

Both do mention the exceptions to this new standard, which seem rather easy to navigate:

Mr. Garland’s memo laid out a set of exceptions. They included if a reporter is under investigation for an unrelated crime; if a reporter is suspected of committing a crime like “breaking and entering” to gather information; if the department is seeking to authenticate already published information — a situation that arises sometimes in television news broadcasts of footage that can be evidence of a crime; or if reporters themselves have been deemed to be agents of foreign power or members of foreign terrorist groups.

An exception will also apply in situations where seizing reporters’ records is deemed “necessary to prevent an imminent risk of death or serious bodily harm, including terrorist acts, kidnappings, specified offenses against a minor” or attacks that could incapacitate or destroy critical infrastructure, Mr. Garland wrote.

These are common-sense exceptions, and in principle very defensible. However, given the bipartisan track record of abuse at the DoJ in dealing with leaks, one has to wonder just how far prosecutors will be able to stretch these to fit whatever they need. The pretext of the Rosen warrant was that Rosen himself was acting as an agent to espionage, which was utterly false. How flexible will “imminent” prove in practice? What evidentiary level will be required if prosecutors claim to suspect a reporter of “breaking and entering” in getting leaked information?

Perhaps Garland will prove more ethical in administering these standards over time. Thus far, though, the track record of his DoJ doesn’t exactly instill confidence — and neither does the track record of the media in holding Democrats accountable for such abuses.