Mystery surrounds Justice’s pledge on journalist records

The Department of Justice’s (DOJ) pledge that it will no longer secretly obtain the records of journalists has left a number of unanswered questions about the department’s handling of leak investigations initiated during the Trump era.

It’s not clear what high-ranking Biden officials knew and when as the Justice Department proceeded with cases involving reporters from three different media outlets or why the department continued to push for gag orders in two cases even after President Biden said late last month that seizure of journalist records was “simply wrong.”

Press advocates were happy to see the DOJ reverse itself Saturday and say it would no longer target journalists, but they also point out they’d like to know more.

“It’s a welcome policy change, but part of the problem is what we just don’t know. We have significant unanswered questions with regard to what happened in all three cases,” said Gabe Rottman, director of the Technology and Press Freedom Project with the Reporters Committee for Freedom of the Press.

The Justice Department notified reporters it received phone records from CNN, The Washington Post and The New York Times, while email logs were obtained for CNN.

The investigations were all tied to stories each outlet had written in the early days of the Trump administration. That includes an investigation into whether former FBI Director James Comey shared details with reporters about a document that influenced his decision to close an investigation into former Secretary of State and 2016 Democratic presidential nominee Hillary Clinton. 

During the time period in which records were sought, the Post also published a story about former Attorney General Jeff Sessions’s contact with Russian officials and CNN reported on U.S. military proposals on North Korea.

“This saga is just another reminder that much of what occurs in government is due to institutional practice, and that a mere shift in political power doesn’t immediately halt all ongoing executive branch actions,” Bradley Moss, a national security lawyer, told The Hill by email, noting that former President Trump expanded leak investigation practices used under the George W. Bush and Obama administrations.

“The current leadership under [Attorney General Merrick] Garland is trying to sort out particular actions they believe warrant continuing for institutional and legal reasons, as opposed to those — such as the surveillance of reporters’ communications — they no longer view as necessary or appropriate.”

The seizures were a deviation from a Justice Department policy that typically requires the agency to notify reporters as soon as their records are sought. 

But the Trump administration took advantage of a provision that allows the attorney general to delay notification if there is a “threat to the integrity of the investigation” or a risk of grave harm to national security or death.

In such cases, the Justice Department is required to disclose that the records were obtained within 45 days, though the attorney general can extend that period for another 45 days.

The time frame largely left the task to fall on the Biden administration, though it’s not clear if the Biden Justice Department met the 90-day requirement for notifying reporters. 

The DOJ did not respond to a request from The Hill on this matter.

It’s also not completely clear how high up the chain decisions were made or why the agency continued to push for secrecy after Biden’s May 21 comments.

The Justice Department continued to seek gag orders on lawyers at both The New York Times and CNN to prevent attorneys from sharing the legal matter with new executives or reporters.

According to reporting from The New York Times, the Biden’s Justice Department fought into the first days of March to keep Google, the Times’s email provider, from notifying the paper’s lawyer about the attempts to seize reporter emails. 

Even after Garland was sworn in on March 11, the Justice Department sought to keep the Times’s lawyer from sharing the details of the case beyond a few top executives — a position it did not reverse until June 2. 

The White House said it was not aware of the gag order until the agency relented in court. 

“As appropriate given the independence of the Justice Department in specific criminal cases, no one at the White House was aware of the gag order until Friday night,” White House press secretary Jen Psaki said in a statement.

But even after the Justice Department’s statement Saturday, the agency still hadn’t resolved a similar gag order with CNN’s lawyer, which wasn’t lifted by a judge until Wednesday. 

The DOJ is facing calls to more fully explain what happened.

“We need to know precisely who authored what, when the records were sought, when they were received, why the decision to delay notification was made — we just need a full accounting of precisely what happened in all three of these cases,” Rottman said.

“And that full accounting is a prerequisite for determining whether additional policy reforms are warranted to make sure it doesn’t happen again.”

The Justice Department has said it has no “pending compulsory requests from reporters” in leak investigations.

“Going forward, consistent with the president’s direction, this Department of Justice — in a change to its longstanding practice — will not seek compulsory legal process in leak investigations to obtain source information from members of the news media doing their jobs. 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,” DOJ spokesman Anthony Coley said Saturday.

But some are concerned the new policy may not be protective enough.

“The new policy only applies in leak investigations and only to ‘members of the news media’ and only when they are ‘doing their jobs’ so it’s not clear who the DOJ would count as members of the news media or what is means when it says they’re doing their jobs, so we need more information on what the policy actually is,” said Anna Diakun, a staff attorney with the Knight First Amendment Institute at Columbia University. 

Garland said at a Senate Appropriations Committee hearing Wednesday that he would issue a memo soon to solidify the media policy changes.

“The president has made clear his view about the First Amendment and it coincides with mine,” he said. “Going forward, we have adopted a policy which is the most protective of journalists’ ability to do their jobs in history.”

But it’s not an issue likely to go away. At the same hearing Wednesday, Sen. Susan Collins (R-Maine) asked if the Justice Department would be investigating a “breach,” pointing to a ProPublica article analyzing the taxes paid by some of the wealthiest Americans after obtaining their confidential records.

Garland said only that he was “sure that that means it will be referred to the Justice Department.”

Media advocates also want the agency to do more to ensure the policy change will be lasting.

“This is a reminder that DOJ’s protections for the news media are subject to change at the whim of an administration. There’s nothing to stop President Biden from walking this commitment back in the future or a later administration from reversing this policy altogether. And without this certainty reporters and their sources just can’t be sure whether their communications will be protected and that has a significant chilling effect,” Diakun added.

The Justice Department’s use of the 1917 Espionage Act to seek reporter records has dramatically ticked up over the last 20 years, with the Bush and Obama administrations also relying on the law to go after leakers.

The latest episodes have renewed calls for a federal shield law, modeled after numerous state laws that protects the rights of reporters to refuse to testify about sources of information obtained during the newsgathering process.

Jake Laperruque, senior counsel for The Constitution Project at the Project on Government Oversight, said the real test will be whether the department pushes for legislative changes.

“If we’re going to stop a policy that happens again and again, we need a law to stop it,” he said, adding that “the record of the last 20 years indicates the tendency is to do the opposite.”

“It’s not going to be enough to be responsible in the moment. If you want to make sure you’re actually protecting civil rights and civil liberties, you have to push for changes that are actually going to bind future administrations.”