Reporters' records put off-limits in leaks cases

FILE - In this June 28, 2018, file photo, a police officer stands outside The New York Times building in New York. The Trump Justice Department secretly obtained the phone records of four New York Times journalists as part of a leak investigation, the newspaper said Wednesday, June 2, 2021. (AP Photo/Mary Altaffer, File)
FILE - In this June 28, 2018, file photo, a police officer stands outside The New York Times building in New York. The Trump Justice Department secretly obtained the phone records of four New York Times journalists as part of a leak investigation, the newspaper said Wednesday, June 2, 2021. (AP Photo/Mary Altaffer, File)

WASHINGTON -- The Justice Department said Saturday that it no longer will secretly obtain reporters' records during leak investigations, a policy shift that abandons a practice decried by news organizations and press freedom groups.

The reversal follows a pledge last month by President Joe Biden, who said it was "simply, simply wrong" to seize journalists' records and that he would not permit the Justice Department to continue the practice.

Though Biden's comments in an interview were not immediately accompanied by any change in policy, a pair of statements from the White House and Justice Department on Saturday signaled an official turnabout from an investigative tactic that has persisted for years.

Democratic and Republican administrations alike have used subpoenas and court orders to obtain journalists' phone and email records in efforts to identify sources who have revealed classified information. But the practice had received renewed scrutiny over the past month as Justice Department officials alerted reporters at three news organizations -- The Washington Post, CNN and The New York Times -- that their phone records had been obtained in the final year of the Trump administration.

The latest revelation happened Friday night when the Times reported the existence of a gag order that had barred the newspaper from revealing a secret court fight over efforts to obtain the email records of four of its reporters. That tussle had begun during the Trump administration but had persisted under the Biden Justice Department, which ultimately moved to withdraw the gag order.

White House press secretary Jen Psaki said in a statement Saturday that no one at the White House was aware of the gag order until Friday night -- "as appropriate given the independence of the Justice Department in specific criminal cases."

More broadly, she said, "the issuing of subpoenas for the records of reporters in leak investigations is not consistent with the President's policy direction to the Department."

In a separate statement, Justice Department spokesman Anthony Coley said that "in a change to its longstanding practice," the department "will not seek compulsory legal process in leak investigations to obtain source information from members of the news media doing their jobs."

He added: "The department strongly values a free press, protecting First Amendment values, and is committed to taking all appropriate steps to ensure the independence of journalists."

In ruling out "compulsory legal process" for reporters in leak investigations, the department also appeared to say that it would not force journalists to reveal in court the identity of their sources.

QUESTIONS REMAIN

Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, said he welcomed the Justice Department's policy change but that serious questions remain about what happened in each of these cases.

"To ensure it does not happen again, we look forward to pursuing additional policy reforms with the Biden administration to further safeguard these essential rights," he said in a statement.

The two newspapers whose reporters' phone records had been secretly obtained also said more needed to be done.

"This is a welcome step to protecting the ability of the press to provide the public with essential information about what their government is doing," New York Times publisher A.G. Sulzberger said in a statement. "However, there is significantly more that needs to be done and we are still awaiting an explanation on why the Department of Justice moved so aggressively to seize journalists' records."

Washington Post Executive Editor Sally Buzbee said the newspaper was calling on the Biden administration and the Justice Department "to provide a full accounting of the chain of events in both administrations and to implement enduring protections to prevent any future recurrence."

The Justice Department statement did not say whether it still would conduct aggressive leak investigations without obtaining reporters' records. It also did not define who exactly would be counted as a member of the media for the purposes of the policy and how broadly the protection would apply.

Even so, it marked a startling reversal concerning a practice that has persisted across administrations. The Obama Justice Department, under Attorney General Eric Holder, alerted The Associated Press in 2013 that it had secretly obtained two months of phone records of reporters and editors in what the news cooperative's top executive called a "massive and unprecedented intrusion" into newsgathering activities.

After blowback, Holder announced a revised set of guidelines for leak investigations, including requiring authorization from the highest levels of the department before subpoenas for news media records could be issued.

But the department preserved its prerogative to seize journalists' records, and the recent disclosures to the news media organizations show the practice continued in the Trump Justice Department as part of several investigations.

WIGGLE ROOM

Biden's seemingly unequivocal vow never to let the Justice Department go after reporters' records in leak investigations has made some veteran national-security officials, including from Democratic administrations, uncomfortable.

Mary McCord, who led the department's national-security division late in the Obama administration and into the first part of the Trump administration, argued that there should be flexibility to do so under certain circumstances if all other methods of gathering information have been exhausted.

"If there is a risk that a person could leak something again that would cause troops to be ambushed, people to die, a ship to be attacked, I would not hesitate to use that authority if that's the only avenue left to potentially stop a person from disclosing that level of information," McCord said.

Still, the Justice Department's statement that it no longer will permit the pursuit of source information from reporters who are "doing their jobs" may have left some wiggle room, depending on how prosecutors define what counts as legitimate newsgathering activity.

SUBPOENA DROPPED

Separately on Saturday, the Justice Department said that it was withdrawing its subpoena that demanded USA Today provide information to identify readers of a story about a suspect in a child-pornography case who fatally shot two FBI agents in February.

The subpoena was issued in April but came to light last week when USA Today and parent company Gannett filed documents in federal court asking a judge to quash it. The subpoena sought the IP addresses and cellphone identification information of readers who clicked on the article for a period of about 35 minutes on the day after the shooting.

The government hadn't provided details about the case or why it was specifically interested in the readers who clicked on the USA Today story during that brief period. Officials had said only that the subpoena was connected to an ongoing federal criminal investigation.

But a federal prosecutor notified lawyers for USA Today on Saturday that the FBI was withdrawing its subpoena because authorities had been able to identify the subject of their investigation -- described in an email as a "child sexual exploitation offender" -- by "other means." The prosecutor's email was included in a court filing by Gannett.

Information for this article was contributed by Eric Tucker and Michael Balsamo of The Associated Press; and by Charlie Savage and Katie Benner of The New York Times.

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