The incident strikes at the very heart of the ability of journalists to gather and report the news, so it is important that the Justice Department be much more forthcoming about why such an extraordinary and troubling step was taken. For starters: Exactly when were the records seized? Why are the reporters only now being told? And what was the justification for not giving advance notification? The records date back more than three years, and it’s hard to think that providing notice would have presented a substantial threat to the investigation, threatened national security or posed imminent risk of death or serious bodily harm.
In letters dated May 3, Post reporters Ellen Nakashima and Greg Miller and former Post reporter Adam Entous, who now works at the New Yorker, were informed by the Justice Department that it had received records — “pursuant to legal process” — associated with their work, home or cellphone numbers for a 3½-month period from April 15, 2017, to July 31, 2017. It is not clear what prompted then-Attorney General William P. Barr to sign off on seizing the records, but the time period was in the early months of the Trump administration, when the reporters were investigating Russia’s role in the 2016 election.
Under the guidance of then-Attorney General Eric H. Holder Jr., the Justice Department in 2013 responded to criticism about the heavy-handed tactics of the Obama administration in pursuing leaks of classified information by ushering in new rules that narrowed the circumstances under which records of members of the media could be seized. We cheered when further adjustments were made in 2015. Under those guidelines, the Justice Department is supposed to exhaust other investigative steps before seeking to obtain the phone records or emails of journalists from telecommunications companies. There should be, according to the guidelines, “the proper balance” among several vital interests, including “safeguarding the essential role of the free press in fostering government accountability and an open society.”
It is unclear whether the Justice Department has adhered to those principles; its defense of the subpoenas without any explanation is troubling. Attorney General Merrick Garland needs to answer questions about how and why this intrusion on the press’s First Amendment rights occurred. And Congress should finally enact a federal shield law that would better protect the ability of the media to do its job.