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Garland limits DOJ going after journalist’s records; leaves loopholes

Attorney General Merrick Garland speaks at the Department of Justice press conference, June 25, 2021. (Department of Justice/Released)
October 27, 2022

Attorney General Merrick Garland issued a new policy on Wednesday prohibiting the Department of Justice from using subpoenas, search warrants and other court orders to seize journalists’ communications and notes to uncover their confidential sources. The new policy codifies restrictions Garland put in place last year after successive U.S. presidential administrations have sought secret search warrants to collect journalists’ communications.

In a memo laying out the new guidance, Garland said the DOJ “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 news gathering, except in limited circumstances.”

Garland’s memo lays out a range of exceptions to the new DOJ policy.

Garland said the policy against the DOJ using compulsory legal processes to get journalists’ records will not cover instances where “there is a reasonable ground to believe” a journalist is an agent of a foreign power or affiliated with a terrorist organization.

Garland said “the Department may only use compulsory legal process for the purpose of obtaining information from or records of a member of the news media acting within the scope of newsgathering” if their records could authenticate for evidentiary purposes any “information or records that have already been published” and when “necessary to prevent an imminent or concrete risk of death or serious bodily harm, including terrorist acts, kidnappings, specified offenses against a minor or incapacitation or destruction of critical infrastructure.”

Garland also said the DOJ can use compulsory legal processes on journalists who are “not acting within the scope of news-gathering” if the journalist in question is suspected of having committed an offense or to obtain records that are not related to a journalist’s news-gathering.

The new policy expands on a policy Garland implemented in July of 2021 after the Biden administration notified CNN, the New York Times and the Washington Post that the Trump-era DOJ had secretly sought their journalists’ email records as part of efforts to find government leakers.

The Trump-era DOJ was not the first to pursue the communications records of journalists.

In 2013, then-President Obama’s DOJ informed the Associated Press that they had swept up records from more than 20 phone lines used by their offices and journalists in a leak investigation after the Associated Press reported about the CIA’s disruption of a Yemen-based terrorist plot to bomb an airliner.

The Obama-era FBI also secretly obtained then-Fox News reporter James Rosen’s correspondence with State Department security adviser Stephen Jin-Woo Kim, as part of another leak investigation. In this case, Rosen was also labeled a “criminal co-conspirator” with the Obama DOJ saying Rosen was “at the very least, either as an aider, abettor and/or co-conspirator.”

The Biden-era DOJ could potentially target journalists the same way the Obama-era DOJ targeted Rosen, given Garland’s provision to allow the department to seek records of journalists they are investigating for criminal offenses.

The new DOJ policy also does not strictly define what it means to be a journalist or member of the news media. This could make the policy difficult to an era where anyone could engage in newsgathering and reporting with social media. Garland’s new policy states that if a person’s status as a member of the news media is in question, it will be up to the Assistant Attorney General for the Criminal Division to make a judgement call.

The new policy also comes about as the Biden-era DOJ has also seized records from Project Veritas, a news organization famous for using hidden-camera sting operations. It’s unclear how the Biden-era DOJ interpreted Garland’s July 2021 policy when pursuing this records search against Project Veritas.