Garland issues memo limiting Justice from seizing reporter records

Attorney General Merrick Garland on Monday issued a memo limiting the Department of Justice’s (DOJ) ability to secretly seize the records of journalists following outrage over gag orders sought in the course of leak investigations involving three different media outlets.

“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,” Garland wrote in a memo to Justice Department leadership and federal prosecutors.

The new policy is similar to a commitment made by DOJ in June after it was revealed the Trump administration subpoenaed records from various communications companies and sought to block them from alerting reporters at CNN, The New York Times and The Washington Post.

The Biden administration, however, later continued to push for gag orders that blocked newsroom leadership from telling reporters that their records were sought.

The policy applies not only to reporters but also to newsroom leaders and the third-party companies that store their communications.

It will not apply to journalists under criminal investigation, nor will it apply to government employees who may provide information to reporters.

Garland’s memo also nods to earlier criticism from media advocates, directing the deputy attorney general to seek regulations codifying the new policy so that it may not be easily changed by subsequent administrations. 

He also said the department “will support congressional legislation” seeking to put the new standards in statute.

“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,” Bruce D. Brown, executive director of the Reporters Committee for Freedom of the Press, said in a statement.

Under the Trump administration, DOJ also sought records from two Democratic lawmakers on the House Intelligence Committee as well as White House counsel Don McGahn.

The seizure of journalist records was 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.

Recently unsealed court filings show the Biden administration was fighting as late as June, even after news broke it had seized records from Post reporters, to keep its initial application sealed, arguing it contains “non-public investigative and witness information.”

An order last week from Magistrate Judge Zia Faruqui said the government has an obligation to release the information now that the leak investigation has closed without any charges.

“Let there be no mistake: the government has a duty to ‘mak[e] public appropriately redacted documents’ after an investigation is closed,” Faruqui wrote, noting that it was the government’s responsibility to redact the documents in order to facilitate the release.

“The government’s anti-redaxer stance is puzzling. … The ‘administrative burden’ of doing its job is no escape hatch from completing this task,” he said.

Updated at 1:20 p.m.