WASHINGTON – Attorney General Merrick Garland severely limited the ability of federal prosecutors to obtain tapes of journalists’ contacts when they investigated leaks of sensitive government information on Monday, curbing a long-standing practice that had sparked offenders. criticism in recent weeks, especially from President Biden.
In a note to federal prosecutors, Mr Garland said the agency’s past policies had failed to properly weigh the national interest in protecting journalists from forced disclosure of their sources, saying they needed to such protection “to inform the American people of how their government is working.”
Mr Garland had vowed he would prevent prosecutors from seizing information from reporters after recent revelations that former President Donald Trump’s Justice Department secretly searched for and obtained 2017 phone records from Washington Post reporters , CNN and The New York Times while trying to identify their sources. This sparked outrage from lawmakers, press freedom organizations and Mr Biden, who said he would no longer allow such tactics.
Mr Garland, who as a federal judge has taken a strong stand in favor of journalists ‘rights and First Amendment protections, told lawmakers in June that the new policy would be the “most protective of journalists’ ability to do their job in history “. He has met with information officials to discuss their concerns at least twice in recent weeks.
The new policy includes exceptions for cases involving an agent of a foreign power or a member of a foreign terrorist organization, or where measures must be taken to “prevent an imminent risk of death or serious bodily harm,” said the memo.
The three-page memo also said the ministry would support legislation codifying protections for journalists into law, going beyond the efforts of previous administrations, and giving Deputy Attorney General Lisa Monaco the responsibility of consulting others to develop new regulations on the matter.
Such legislation has not been a priority for lawmakers in recent years and would face an uncertain fate in Congress. Without becoming law, any rules passed by the Justice Department under Mr Garland could be overturned by a future administration.
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Media advocates applauded the decision. “The Attorney General has taken a necessary and critical step to protect press freedom at a critical time,” said Bruce Brown, executive director of the Journalists’ Committee on Press Freedom. “This historic new policy will ensure that journalists can do their job of informing the public without fear of federal intrusion into their dealings with confidential sources,” said Mr. Brown.
Some former national security prosecutors said that while existing guidelines already made it difficult to subpoena journalists’ files and provided for the tool as a last resort, they expected the new memo to further limit such investigations.
“I think this will make leaks of classified information more difficult to investigate, but it was a compromise the department is prepared to make in order to provide greater privacy protection for journalists and their sources,” he said. said Kellen Dwyer, a former district attorney who was deputy. Assistant Attorney General in the National Security Division of the Department of Justice and now works at the law firm Alston & Bird.
For years, prosecutors have used subpoenas and court orders to obtain journalists’ files in leak investigations, often after exhausting other options to identify suspects. Under the Obama administration, for example, the Justice Department used the tool for investigations involving reporting from the Associated Press and Fox News. Several former government employees and senior officials have been sued by the Obama Justice Department.
In one notable case in 2010, former Attorney General Eric Holder personally approved the seizure of the phone records and personal emails of Fox News Channel reporter James Rosen, who reported on a secret government report on Korea. North. An FBI search warrant request identified Mr. Rosen as a possible criminal “co-conspirator”.
In response to a backlash from media advocates and others, Holder added in 2013 new hurdles that prosecutors had to overcome before they could get subpoenas and search warrants targeting journalists. The measures included requiring prosecutors to give notice to a media organization before a subpoena could be issued to seize cases, unless the attorney general certifies that doing so would interfere with the investigation.
At the start of the Trump administration in 2017, then Attorney General Jeff Sessions pledged a crackdown on classified information leakers and said the Justice Department would review policies on subpoena news organizations. At the time, Mr. Trump had repeatedly complained about leaks related to contacts between Russia and figures from his 2016 election campaign and the investigation by then-Special Advocate Robert Mueller, on these links. In June 2021, a Treasury Department official was sentenced to six months in prison for leaking sensitive financial information about former Trump campaign chairman Paul Manafort and others.
Mr Trump’s second attorney general, William Barr, continued the practice, tasking a New Jersey federal prosecutor to work on the half-dozen leak cases he inherited.
Unsealed court documents last week show the Justice Department searched the files of three Washington Post reporters on December 22, the day before Mr Barr resigned, in a bid to identify sources in three articles . Prosecutors identified them by their publication dates: a May 2017 article detailing conversations between Mr. Trump’s adviser and son-in-law Jared Kushner and Sergey Kislyak, Russia’s ambassador to the United States at the time; a June 2017 report on the Obama administration’s struggles against Russian electoral interference; and a July 2017 story about conversations between Mr. Kislyak and Mr. Sessions, which had the discussions when he was a United States Senator.
Prosecutors said in their court order request that they believe a member of Congress may have provided the newspaper with details of Mr. Kislyak’s conversations.
Trump’s Justice Department also seized communications records from some Democratic lawmakers in 2018, a revelation that sparked outrage from Democrats. Lawmakers themselves were not the target of the investigation, the Wall Street Journal previously reported, and their records were obtained because they had been in contact with one or more assistants that prosecutors suspected of having. disclosed classified information to the media.
Senior Justice Ministry officials have long questioned how forcefully prosecutors should press for the files of journalists looking for the sources of the leaks. For example, even as Mr. Sessions stepped up investigations into the leaks, behind the scenes some ministry officials rejected a more aggressive stance, the Journal reported.
In 2017, for example, law enforcement discussed with Mr. Sessions whether to relax the requirement that investigators exhaust other options to obtain information as part of prior leakage investigations. to subpoena journalists’ files, the people said. Mr Sessions asked his deputy, Rod Rosenstein, to review the policy, which officials ultimately refused to change.
More WSJ coverage of Trump Justice Department policy, selected by editors.
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