The Washington PostDemocracy Dies in Darkness

Opinion Something appears to be ‘simply, simply wrong’ at the Biden Justice Department

Justice Department headquarters in Washington. (Andrew Kelly/Reuters)

Fred Ryan is publisher of The Post.

During the final days of the Trump administration, the attorney general used extraordinary measures to obtain subpoenas to secretly seize records of reporters at three leading U.S. news organizations. After this was reported last month, President Biden rightly decried this attack on the First Amendment, calling it “simply, simply wrong” and assuring Americans that it would not happen in his administration.

Unfortunately, new revelations suggest that the Biden Justice Department not only allowed these disturbing intrusions to continue — it intensified the government‘s attack on First Amendment rights before finally backing down in the face of reporting about its conduct.

After Biden took office, the department continued to pursue subpoenas for reporters’ email logs issued to Google, which operates the New York Times’ email systems, and it obtained a gag order compelling a Times attorney to keep silent about the fact that federal authorities were seeking to seize his colleagues’ records. Later, when the Justice Department broadened the number of those permitted to know about the effort, it barred Times executives from discussing the legal battle with the Times newsroom, including the paper’s top editor.

This escalation, on Biden’s watch, represents an unprecedented assault on American news organizations and their efforts to inform the public about government wrongdoing.

Last month, The Post learned of secret subpoenas authorized by President Donald Trump’s outgoing attorney general to obtain email information and home, cell and office telephone records of three Post reporters over a 3½-month span in 2017. We immediately requested an explanation and answers to several questions from the Justice Department as well as a meeting with the attorney general.

To date, no answers have been provided and the meeting has yet to take place. This delay is troubling. When asked about how the president’s assurances can be squared with his Justice Department’s behavior, White House press secretary Jen Psaki could offer no explanation. She subsequently released a statement disavowing White House knowledge of the actions that appear to have continued for several months during Biden’s presidency.

Throughout U.S. history, there have been inevitable differences between news organizations seeking to shed light on government activity and government officials seeking to preserve secrecy. As a society, we have become accustomed to these tensions. For the most part, they have been constructive and good for the health of our democracy. However, the egregious acts by the outgoing Trump Justice Department, and the apparent doubling down on them during the Biden administration, should alarm all Americans, regardless of political persuasion.

The First Amendment is not a special privilege of the press but, rather, a fundamental right protecting all Americans. It empowers citizens to hold their elected officials to account by ensuring that wrongdoing, even at the highest levels, will be brought to light. Much of this reporting would be impossible without courageous government employees who, after learning about serious misdeeds, improper programs conducted under the cloak of secrecy, or other actions contrary to America’s fundamental principles and national interests, take the risk of speaking to reporters in confidence to bring such conduct to the attention of their fellow citizens.

Over the years, revelations by confidential government sources have informed Americans of serious missteps by our leaders and institutions that possess great power but little accountability. The sinister experiments at the Tuskegee Institute, the controversial interrogations at secret CIA prisons and dangerous lapses in the Secret Service’s protection of the president are just a few of the countless stories that emerged because government sources, trusting reporters to keep their identities secret, served the public’s right to know.

Trump’s actions, and the expansion upon them during the Biden administration, pose a grave threat to our ability as a nation to keep powerful officials in check. With the revelation that the Justice Department has secretly obtained phone and email records at multiple news organizations to sniff out the identities of journalists’ sources, government employees who would otherwise come forward to reveal malfeasance are more likely to fear exposure and retaliation, and therefore to stay silent.

Perhaps beginning to realize the seriousness of its errors, the Biden Justice Department released a statement Saturday asserting that it “will not seek compulsory legal process in leak investigations to obtain source information from the media doing their jobs.” While this is an encouraging step, it does not guarantee that the Biden administration — or future administrations — will not resume these intrusive tactics. There must be clear and enduring safeguards to ensure that this brazen infringement of the First Amendment rights of all Americans is never repeated.

The inconsistency between presidential words and Justice Department deeds dictates the need for full accountability and transparency regarding the actions taken by the exiting Trump Justice Department and those of the incoming Biden administration. A full accounting should be produced and released for the American public to see.

Anything less would be simply, simply wrong.

Read more:

The Post’s View: The Justice Department needs to explain why it seized Post reporters’ phone records

Ruth Marcus: Trump’s attacks on the press were bad. What this federal judge did was worse.

Erik Wemple: Failed prosecution of Iowa reporter was an attack on journalism

Jennifer Rubin: Biden understands the pace of governance, the media not so much

Erik Wemple: Antonin Scalia hates ‘NYT v. Sullivan’

The Post’s View: Trump’s flagrant assault on the First Amendment is disguised as a defense of it