“So you won’t let your Justice Department do that?” the reported asked.
“I will not let that happen,” the president responded.
Media organizations and free-press advocates decried the moves, asking whether the Justice Department had followed its own policies and noting that such tactics have a chilling effect on journalists’ ability to uncover essential information about the government. Two Democratic lawmakers — Sen. Ron Wyden (Ore.) and Rep. Jamie B. Raskin (Md.) — wrote to Attorney General Merrick Garland urging him to stop using the tactic. But until the president’s assertion Friday, his administration had not renounced the practice.
Biden’s statement would seem to block the Justice Department from sifting through reporters’ records in leak investigations and other cases, at least while he is in office. That could curtail federal law enforcement’s ability to pursue those who reveal classified information, although under existing policy, prosecutors were supposed to pursue all other means before trying to sweep up any reporter’s communications.
“That statement basically ends the chances of any media subpoenas in this administration,” said Matthew Miller, who was a spokesman for Eric H. Holder, President Barack Obama’s attorney general.
Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, said that he is seeking more details on the Justice Department’s recently revealed seizures and that he is in talks with government officials to reconstitute a group of journalists and Justice Department personnel first formed in the Holder years to discuss the impact of the department’s policies. The group, he said, has not met since 2018.
Brown hailed Biden’s comments, saying they set the groundwork for a productive discussion about the policy.
“Hearing him say, ‘This is wrong,’ and hearing him say, ‘This is not going to happen again,’ that’s just what we’re wanting to hear,” Brown said.
But some former Justice Department officials cautioned that a unilateral ban on going after reporter records was unwise. “It’s appropriate for there to be a significant hurdle for the Justice Department to seek records of journalists in leak investigations — but establishing a blanket prohibition would be detrimental to legitimate national security interests,” said David Laufman, a former Justice Department national security official who previously oversaw leak cases. “What the department needs is a policy that strikes the right balance between protecting First Amendment interests while enabling law enforcement to determine who’s responsible for the unauthorized disclosure of classified information.”
A Justice Department spokesman declined to comment on Biden’s declaration. It was unclear whether the president’s remark — which appeared to be off the cuff — would be accompanied by any policy update or formal guidance to federal prosecutors.
In a briefing Friday before Biden spoke, White House press secretary Jen Psaki had notably declined to renounce the Justice Department’s practice of secretly seeking journalists’ phone and email records to identify sources in leak investigations, even as she sought to distance the Biden administration from the recently revealed instances of the Trump administration’s doing so.
Asked what the Biden administration’s view was on the Justice Department’s having secretly obtained journalists’ records, Psaki noted that the moves occurred before Biden was in office but did not answer whether she thought the tactic was appropriate.
“The Justice Department conveyed yesterday that they intend to meet with reporters to hear their concerns about recent notices, and they certainly intend to use the Holder model as their model, not the model of the last several years,” Psaki said during the briefing. “But really, these decisions would be up to the Justice Department.”
Pressed later by a reporter who noted that Holder’s Justice Department had also secretly sought reporter phone records — though it later instituted policies narrowing the circumstances in which that could be done — Psaki again deflected.
“We’re not going to follow the Barr model, and I would point you to our Department of Justice as to how they will approach that issue,” she said, referring to William P. Barr, who served as attorney general under President Donald Trump.
In a brief phone call after Friday’s White House news briefing, Barr asserted, “All I’ll say is, I followed the Holder model.” He declined to answer more-specific questions.
Anthony Coley, a Justice Department spokesman, also declined to answer specific questions about the recently revealed gathering of journalists’ records, including whether the moves were appropriate and whether the department would continue the practice.
The Post was notified earlier this month that the department had, during the Trump administration, secretly obtained phone records of Post journalists and tried to obtain their email records. The effort appears to have been centered on reporting about the Trump administration and Russia’s interference in the 2016 election. Then, on Thursday, CNN revealed that its Pentagon correspondent was told her phone and email records had been secretly swept up by the department.
After the revelation that Post reporters’ records were collected, Marc Raimondi, a Justice Department spokesman, seemed to suggest the department’s policies had been followed.
“While rare, the Department follows the established procedures within its media guidelines policy when seeking legal process to obtain telephone toll records and non-content email records from media members as part of a criminal investigation into unauthorized disclosure of classified information,” he said in a statement at the time.
But after the more recent revelation about the gathering of CNN Pentagon correspondent Barbara Starr’s records, Coley, the Justice Department’s top spokesman, said only that the move happened in 2020 and vowed, “Department leadership will soon meet with reporters to hear their concerns about recent notices and further convey Attorney General Garland’s staunch support of and commitment to a free and independent press.”
Holder faced significant controversy over collecting the phone records of journalists working for the Associated Press and Fox News. In 2013, he issued guidelines for how such records should be obtained. The guidelines called for prosecutors to notify and negotiate with reporters before obtaining their records but said an exception could be made if the attorney general determined that such discussions would pose a substantial threat to an investigation. Obama had called on Holder to review the Justice Department’s guidelines on such matters.
Miller, the former Holder spokesman, said he thought reporter subpoenas during the Biden administration were “unlikely anyway after the experience in the Obama administration and the rules Holder put in place.” But Biden’s assertion, he said, “drives a stake through it, barring something truly unexpected.”
Miller conceded that the Holder policy was “not perfect,” because the exception could be exploited to allow a willing attorney general to search reporters’ records. But he said the department was unlikely to want to abandon entirely the practice of issuing subpoenas to journalists, because nefarious actors, such as foreign intelligence agents, might pose as journalists to dodge law enforcement.
“You have to either ban media subpoenas outright — which I think is unwise, and most people at the department think is unwise — or you have to have some kind of an exception,” Miller said. “And the problem with having some exception is an attorney general who doesn’t want to follow the spirit of these rules can always find an exception.”
Devlin Barrett and Amy B Wang contributed to this report.