WASHINGTON – Attorney General Merrick Garland on Monday formally prohibited federal prosecutors from seizing the records of journalists in leak investigations, with limited exceptions, reversing years of department policy.
The new policy largely codifies the commitment Garland made in June, when he said the Justice Department would abandon the practice of seizing reporters' records as part of efforts to uncover confidential sources. It aims to resolve a politically thorny issue that has long vexed Justice Department prosecutors trying to weigh the media's First Amendment rights against the government's desire to protect classified information.
“The United States has, of course, an important national interest in protecting national security information against unauthorized disclosure,” Garland wrote in his memo. “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 their government.”
The memo makes clear that federal prosecutors can, in some cases, obtain journalists' records. Those exceptions include if the reporters are suspected of working for agents of a foreign power or terrorist organizations, if they are under investigation for unrelated activities or if they obtained their information through criminal methods like breaking and entering. There are also exceptions for situations with imminent risks, like kidnappings or crimes against children.
Garland was moved to act following an outcry over revelations that the department during the Trump administration had obtained records belonging to journalists at The Washington Post, CNN and The New York Times as part of investigations into who had disclosed government secrets related to the Russia investigation and other national security matters.
Others whose records were obtained were Democratic members of Congress and aides and former White House counsel Don McGahn.
Garland's announcement came after President Joe Biden said he would not allow the Justice Department to seize journalists’ phone records and emails, calling the practice “simply wrong." After that, Garland and other senior Justice Department staffers held meetings with representatives of news media organizations.
In the memo, Garland also said he would support federal legislation to add protections for journalists.
Media advocates praised the policy shift.
“The attorney general has taken a necessary and momentous step to protect press freedom at a critical time," said Bruce Brown, the 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.”
Leak investigations have long challenged department officials, resulting in policy changes in the last decade as well as pushback from media groups against government encroachment into their work.
President Barack Obama's first attorney general, Eric Holder, announced revised guidelines for leak investigations after an uproar over actions seen as aggressively intrusive into press freedom, including the secret seizure of phone records of Associated Press reporters and editors.
Jeff Sessions, President Donald Trump's first attorney general, announced in 2017 a leak crackdown following a series of disclosures during the investigation into Russian election interference.