Attorney General Limits DOJ From Seizing Reporter’s Records

( The Department of Justice will no longer have full authority to seize records of journalists in secret.

On Monday, Merrick Garland, the attorney general, wrote a memo that limits the DOJ’s ability to seize the records of journalists secretly. This follows public outrage that occurred when the DOJ sought gag orders while they were investigating leaks at three media outlets.

According to the memo Garland sent to leadership at the DOJ as well as federal prosecutors:

“The Department of Justice will no longer use compulsory legal process for the purpose of gathering information from or records of members of the news media acting within the scope of newsgathering activities.”

In June, the DOJ made a commitment to doing just this. That came in the wake of information being revealed that the Trump administration subpoenaed the records of various communications companies. The goal was to block them from notifying reporters at The New York Times, CNN and The Washington Post about the subpoenas.

Immediately in the wake of this happening, the Biden administration stuck to the script. They kept the policy in place so that gag orders would block leadership in newsrooms from letting their reporters know their records were being sought.

Now, though, Garland’s memo is taking the direct opposite approach. The only exceptions to the policy are for any journalist who may be under a criminal investigation, or a government employee who might provide any information to a reporter.

Garland directed the attorney general to ultimately seek regulations that would codify this policy so it couldn’t be changed so easily by future administrations. He said the DOJ “will support congressional legislation” that seeks to put the standard in a statute.

The memo has received praise from many people since it was released earlier this week. One is Bruce Brown, who serves as the executive director of the Reporters Committee for Freedom of the Press, who released a statement saying:

“The attorney general has taken a necessary and momentous step to protect press freedom at a critical time. 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.”

When the Trump administration sought the records of journalists, it deviated from previous DOJ policy that required the department to notify reporters once their records were sought.

The DOJ under Trump, though, used a provision allowing the attorney general to delay that notification if there’s a “threat to the integrity of the investigation.” A delay would also be possible if there was a risk of grave harm to national security or death.

In those cases, the DOJ was required to disclose the records were obtained within 45 days. That period could have been extended by 45 more days by the attorney general, though.

Despite Garland’s new memo, it’s very clear that the Biden administration was looking to hang onto this ability to seek journalists’ records, in the way the Trump administration had.