Attorney General Eric H. Holder Jr. on Wednesday announced changes to Justice Department policies in cases involving the news media, further tightening guidelines for the use of subpoenas, court orders and search warrants to obtain information and records of journalists.
Under the new guidelines, investigators will need authorization from the attorney general if they want to seek information from journalists who used classified material or confidential sources in the course of their newsgathering. Previously, the department had insisted that policy apply only to “ordinary newsgathering.”
A group of media representatives who met with Holder last year wanted that phrase stricken from the policy, saying it was vague and gave the Justice Department too much discretion to determine what counted as “ordinary” journalistic practice and what was unusual.
“These revised guidelines strike an appropriate balance between law enforcement’s need to protect the American people, and the news media’s role in ensuring the free flow of information,” Holder said in a statement.
The changes to the policies come days after federal prosecutors said in a court filing that they did not intend to call New York Times reporter James Risen as a witness in a high-profile leak case against a former CIA officer accused of being one of his sources. Holder had decided last year that he would not force Risen to reveal his confidential source.
“The revised guidelines are an important step in the right direction because, at least on paper, they return the Justice Department to where it had been before the Obama administration’s crackdown on press sources,” said Steve Coll, dean of the Columbia University Graduate School of Journalism and former managing editor of The Washington Post.
“Combined with his decision to withdraw the subpoena to Jim Risen, Holder has done what he reasonably can to clean up his legacy on press issues before his departure,” Coll said.
The revisions — which were announced in a memo from Holder to all Justice employees — also expand the high-level review by the attorney general for the use of certain law enforcement tools, such as subpoenas and applications for warrants, when the information that investigators are trying to obtain from members of the news media relates to newsgathering activities.
Holder ordered a review of the department’s guidelines two years ago after an uproar from the news media and press freedom organizations over a pair of disclosed leak investigations. Justice officials obtained records from more than 20 phone lines assigned to the Associated Press and its journalists as part of a year-long investigation into a failed al-Qaeda plot. In the second leak investigation, Rosen, a Fox News reporter, was called a possible “co-conspirator” in a crime in order to obtain a search warrant for his records.
Holder and other Justice officials met last May with a group of journalists, which included Coll; Leonard Downie Jr., former executive editor of The Washington Post; Bill Keller, former executive editor of the New York Times; New Yorker writer Jane Mayer; ABC News bureau chief Robin Sproul; the Wall Street Journal’s Washington bureau chief, Gerald Seib; and Susan Page of USA Today.
The new policy is not binding but instead is a set of guidelines meant to be advice to prosecutors when considering whether they pursue reporters in leak investigations.