Garland Bars Seizure of Reporters’ Records in Most Cases

(Bloomberg) -- Justice Department and FBI investigators will be barred from seizing materials from reporters and news outlets except in extreme circumstances, according to a new policy announced by Attorney General Merrick Garland.

“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,” Garland said in a memo issued Monday to federal prosecutors.

The attorney general said the agency’s previous guidelines didn’t properly weigh the “national interest” in shielding reporters from having to disclose their sources, saying such protections are needed to “apprise the American people of the workings of their government.”

Garland pledged in June that he would curb prosecutors’ ability to seize reporters’ records following revelations that Justice Department officials during the Trump administration had seized or tried to seize phone records and other communications metadata for reporters with the New York Times, CNN and the Washington Post as part of an investigation into leaks to the media.

The Trump administration also seized records from at least two House Democrats, their staffs and family members, and then-White House counsel Donald McGahn.

The revelations represented an early public relations and political crisis for President Joe Biden’s administration. The president vowed not to repeat his predecessor’s actions, but the administration hadn’t yet fleshed out a specific policy.

“Absolutely positively it’s wrong. It’s simply, simply wrong,” Biden told reporters on May 21 when asked about the disclosures. “I won’t let that happen.”

New Standard

Garland’s policy creates a new standard for how the Justice Department will handle investigations that involve news outlets and reporters, restricting orders that compel companies to hand over records except in rare circumstances.

Those exceptions include cases in which a news media member is deemed to be a foreign agent or member of a foreign terrorist organization. There are also carve-outs in cases where journalists are under criminal investigations for violations, such as insider trading, or if they break the law to obtain government information, or when extreme steps are needed “to prevent an imminent risk of death or serious bodily harm.”

Yet the protections granted to media members in most circumstances are wide-ranging. Investigators are banned from issuing warrants and subpoenas or seeking court orders to obtain information compiled in newsgathering, Garland wrote. That applies to journalist testimony, physical documents, metadata, telephone toll records and digital content, according to Garland’s memo.

Garland also ordered Deputy Attorney General Lisa Monaco to craft a new regulation codifying the policy, a move intended to make it harder for a future attorney general to overturn or sidestep it.

Leak investigations have long posed a challenge for the Justice Department, which has faced criticism from media organizations that say government investigators have infringed on their work.

“The attorney general has taken a necessary and momentous step to protect press freedom at a critical time,” said Bruce D. Brown, 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.”

Eric Holder, who served as attorney general under President Barack Obama, revised the department guidelines for leak probes after widespread criticism over seizures of journalists’ phone records.

Under Trump, the Justice Department was zealous about probing leaks after disclosures about the investigation into Russian interference in the 2016 election. Democrats on the House Judiciary Committee expect to have a closed-door briefing from Justice Department officials next week on its actions tied to surveillance of members of Congress and journalists, according to an official familiar with the matter.

In a June interview with Politico, Bill Barr said that while he was attorney general under Trump he was he was “not aware of any congressman’s records being sought in a leak case.” He also said Trump never encouraged him to target lawmakers’ records.

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