Attorney General Says He'll Support Legislation That Bans The DOJ From Targeting Reporters During Leak Investigations

from the sounds-great-but-let's-get-that-on-paper dept

The first half of this year has been periodically interrupted with news of the DOJ’s attempts to obtain journalists’ phone and email records. The Trump Administration targeted journalists at CNN, the New York Times, and the Washington Post while trying to sniff out the sources of White House leaks.

This wasn’t necessarily uncommon behavior for the DOJ. Prior to Trump’s arrival in office (along with his open disdain for journalists), the Obama Administration set records for leak investigations and whistleblower prosecutions. Obama’s DOJ targeted journalists hundreds of times while Eric Holder was Attorney General.

Following this run of negative press, President Joe Biden stepped up to swear the DOJ would never target journalists again. A few days later, the DOJ decided it should align itself with its boss and also said it would end the practice of seeking journalists’ records during leak investigations. An investigation was opened by the DOJ’s Inspector General to see how often this was done and whether or not it violated rights/DOJ policies.

This is all well and good but all it takes is a regime change — something that can happen as often as every four years — to roll these pledges back and let the DOJ get back to using journalists’ communications records to track down their sources. To make it permanent, you need codification.

So, Congress had better get on it, because this promise by the new Attorney General expires when he leaves office.

Attorney General Merrick Garland has endorsed the idea of legislation to create an enduring ban on federal prosecutors subpoenaing reporters or their phone or email records in federal investigations, but he stopped short of announcing an official endorsement on behalf of the Biden administration.


“You are right in suggesting that the only way to make it permanently durable is through legislation, and I personally will support working with Congress to develop legislation that would make protections for obtaining the press’ records part of the legislation,” the attorney general said in response to a journalist’s question on the topic.

A lot of journalist shield legislation has come and gone without becoming enshrined into law. It will be no less difficult to get this on the president’s desk this time around, as there seems to be some leftover animosity towards the press residing in a number of Congressional reps and Senators.

The DOJ is revamping its internal policies to better fit the public statements made by Merrick Garland. But those too are subject to rewriting if future DOJ officials would rather punish leakers than respect rights. Still, this is more than we’ve seen from any other DOJ boss in terms of protecting journalists from the DOJ. Obama’s Attorney General, Eric Holder, did back legislation creating more protections for journalists, but that failed bill did not explicitly forbid the DOJ from seeking journalists’ records.

This is heartening news, even if it’s a bit dampened by the reality of passing legislation in DC. Without bipartisan support, it will likely go nowhere. It will be up to the DOJ to enforce its own ban, if that’s the direction it decides to go. Trusting the DOJ to not break its own rules has rarely worked in the past. If the DOJ decides later it’s more efficient to go after journalists when hunting leakers, it will. And it will find a way to justify its actions, with the easiest route being to quietly scrap internal guidelines preventing it from doing what it wants.

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