Cases in which prosecutors seek source information from journalists have always been controversial. For decades, the Justice Department has had internal guidelines governing such cases. They require that the department seek records from a journalist related to newsgathering only if those records are essential to a successful investigation, all other avenues to obtain the information have been exhausted and the request is approved by top Justice officials. These are considered “extraordinary measures, not standard investigative practices.” Occasional disputes do flare up and are to be expected. But in general, these guidelines have done a pretty good job of balancing the needs of law enforcement and the critical role of the free press.
These issues most often come to a head when the government is investigating unlawful leaks of classified information. Leak cases raise unique challenges for law enforcement. If a reporter receives a tip about misconduct by some government official and writes a story, prosecutors have plenty of tools with which to investigate that misconduct. They usually will have no need to seek the identity of the reporter’s source. But in a case involving a leak of classified information, the disclosure to the reporter itself is the potential crime. And usually there will be no witnesses — other than the reporter.
Imagine, for example, that the government develops classified plans to retaliate against Russian hackers engaged in ransomware attacks in the United States. A Russian sympathizer within the government leaks those plans to a sympathetic news website, which writes a story. As a result, the Russians are able to thwart the plan and retaliate by launching another serious cyberattack. There are likely only two witnesses to that leak: the leaker, who has a Fifth Amendment privilege not to testify, and the journalist. If seeking information from the journalist is absolutely prohibited, prosecuting (and thereby deterring) such damaging leaks of classified information may be impossible.
It’s important to point out that in such an investigation, the journalist is not being prosecuted or otherwise punished for doing her job. Nor is the government preventing anything from being published or retaliating against the news organization. Prosecutors are merely trying to identify, after the fact, the individual who unlawfully disclosed sensitive information and thereby damaged the country. And in that very narrow category of investigations, seeking records from the journalist may become necessary.
Investigations in which the Justice Department seeks records from a reporter are extremely rare, as they should be. Even during the Trump years, it appears there were only a handful of such cases out of the countless thousands of news stories — and leaks — during his administration.
The concern, of course, is that an administration might pursue a leak case not to safeguard national security but to punish those who disclose information that is merely embarrassing or politically damaging. It’s possible the Trump administration’s pursuit of these records was improper. It makes sense for President Biden’s Justice Department to examine those actions and provide an accounting. Perhaps Attorney General Merrick Garland should sit down with representatives from the media to discuss whether the department’s guidelines require further modification, as Attorney General Eric Holder did during the Obama administration, the last time the guidelines were substantially revised.
But pledging to never again seek such records feels like a knee-jerk reaction to the heat the Biden administration was feeling — over events that largely did not take place on its watch. The Justice Department announced its self-imposed ban via a brief statement following an apparently off-the-cuff remark by Biden that seizing a journalist’s records was “simply wrong” and that he will “not let that happen” in his Justice Department. That’s no way to make policy in this complex area.
The free press plays a vital role in holding the government accountable. But First Amendment rights, like all constitutional rights, are not absolute. The Justice Department should ensure that subpoenas to journalists are limited to those cases where they are truly justified. But handcuffing legitimate law enforcement efforts by prohibiting all such subpoenas is, well, simply wrong.