Kiran Raj was senior counsel to the deputy attorney general at the Justice Department from 2013 to 2016 and deputy general counsel of the Department of Homeland Security from 2016 to 2017. He is now a partner at O’Melveny & Myers. Paul O’Brien was deputy assistant attorney general for the Justice Department’s Criminal Division from 2012 to 2016.
Attorney General Jeff Sessions recently announced that the Justice Department would review his agency’s media guidelines, reportedly looking to make it easier to obtain information from members of the media in leak investigations. This includes more aggressively going after unauthorized disclosures of classified information.
Such a move is unnecessary for successful prosecutions, and it could have long-term negative consequences on the free press.
Federal prosecutors and agents have an obligation to aggressively pursue the unlawful disclosure of classified information even if the disclosure is made to a journalist. But when the government’s interest in identifying leakers conflicts with journalists’ need to protect their sources, the government must carefully balance both its interest in delivering justice as well as the legitimate and crucial newsgathering function of the media.
Striking that delicate balance is not easy. We should know — this was the task we undertook at the Justice Department from 2013 to 2015. We led a team that, after a nearly two-year review, updated the department’s media guidelines to allow prosecutors to do their jobs effectively while simultaneously safeguarding the free press and its role in government accountability.
We are confident we developed a process that respects the concerns of journalists while allowing prosecutors to investigate national security concerns. Indeed, our review included input from stakeholders both inside and outside the department, including career prosecutors and representatives of the news media.
The changes to the media guidelines we implemented in 2015 were long- overdue. The Justice Department last made major revisions in 1980 after the Supreme Court upheld the government’s power to execute a warrant on a newspaper. Indeed, the debate over the department’s subpoena of Associated Press phone records prompted President Barack Obama in 2013 to ask Attorney General Eric H. Holder Jr. to review the media guidelines.
The resulting changes we made were both significant and necessary. The new policy expressly stated that a member of the news media will be notified before the department uses legal process — such as subpoenas and warrants — to obtain records, unless the attorney general determines that such notice would pose a substantial threat to an investigation’s integrity, risk grave harm to national security or present an imminent risk of death or serious bodily harm. Even if the attorney general makes that determination, notice can be delayed for only 90 days — a rule intended to recognize that news media records should be sought only as a last resort.
The guidelines also added higher-level approvals and reviews of legal process served on the media. Senior Justice leaders — including the chief privacy and civil liberties officer and the director of the Office of Public Affairs — now must pressure-test the necessity of issuing subpoenas for journalists’ records, assuring that the entire department leadership has considered both the need and the potential harm before any subpoena is issued.
In some cases, the revisions made it easier on prosecutors. For example, the guidelines do not apply if there is reason to believe that an individual or entity is working for a foreign power or providing material support for a terrorist organization. In such rare instances, the individuals or entities in question do not deserve the protection we afford to members of the news media.
The department also improved transparency by committing to release statistical data on an annual basis regarding the use of media-related process.
The current media guidelines reflect the belief that there are tough choices to make among oft-competing values. The updated guidelines ensure that any attempt to obtain information from journalists in significant leak investigations occurs in extreme cases where all other reasonable options have failed. At the conclusion of our review, we were gratified that the Reporters Committee for Freedom of the Press issued a statement to welcome the changes and praise the process by which we arrived at our revisions.
Sessions is well within his authority to order another review of the media guidelines, but it is difficult to see a legitimate need for additional changes. If the department does move forward with a review, any changes should include discussions with key stakeholders, including members of the news media. In any case, Sessions must work to preserve the department’s long-standing respect for freedom of the press.