The department’s move came after the Times disclosed that prosecutors not only sought reporters’ email and phone records but also obtained a gag order — first on Google, which operates the Times email system, and then on the few Times officials who were told about the investigational activity, after Google insisted the newspaper be informed. The Times lawyers and executives who were told about the department’s demands could not legally share what they knew even with senior Times editors.
It was unusual enough that the Justice Department sought reporters’ communications records without notifying the media outlets, a step that department policy supposedly permitted only in extreme circumstances. The data prosecutors sought suggest investigators were examining leaks that were not substantial enough to justify secret records demands. A gag order preventing the journalists or their editors from defending themselves added another layer of offense. That these proceedings continued well after President Biden entered office raised questions about the new administration’s commitment to correcting the dangerous behavior of the last one.
Following the Times’s report, the White House insisted it did not know about the gag order. Mr. Biden had previously declared that “it’s simply, simply wrong” for federal prosecutors to demand journalists’ communications records. Then, on Saturday, the Justice Department announced, “Going forward, consistent with the president’s direction, this Department of Justice — in a change to its long-standing practice — will not seek compulsory legal process in leak investigations to obtain source information from members of the news media doing their jobs.”
This is welcome news, but it leaves many questions. What does “doing their jobs” mean to the department? Are there any circumstances in which a newspaper and the department might disagree on, say, whether reporting on leaked classified information would count? What about a case in which investigators believe that journalists’ records may be needed to prevent imminent harm — the sort of circumstances the old guidelines were meant to give federal officials flexibility to address? Is it credible that the department would still refrain?
Moreover, it is unclear whether the new rules will outlive the Biden administration — or even this particular uproar. Congress should write into law permanent protections for journalists.
Meanwhile, the Justice Department owes the public an accounting of what took place: When was high-level permission given to go after these reporters, and by whom? Which Biden administration officials learned about the intrusions, and what did they do once they knew? Why did the Biden Justice Department defend the practice, and what have investigators done with the records they obtained? Attorney General Merrick Garland should inform the public.