The Loopholes May Be Smaller in the Justice Department's New Media Rules, but They're Still There

By James Risen, The Washington Post

26 July 21

he news media is lavishing praise on the new guidelines issued by Attorney General Merrick Garland to limit when prosecutors go after journalists’ phone and email records. The guidelines replace rules set out in January 2015 by then-Attorney General Eric Holder, designed to restrict the ability of prosecutors to seize phone records and other data from reporters when prosecutors were seeking to identify their sources in leak investigations. The Holder revisions followed an outcry from the news media after disclosures that the Justice Department had secretly obtained the phone records of Associated Press reporters in one leak investigation and labeled a Fox News reporter a “co-conspirator” in another.

When the 2015 revisions were announced, Holder was praised for taking action to protect reporters from government intrusion. But it turned out that the loopholes in Holder’s guidelines were big enough to drive a Mack truck through — as President Donald Trump’s Justice Department did.

In 2017, Jeff Sessions, Trump’s first attorney general, said he was reviewing Holder’s guidelines to see whether they needed to be changed to make it easier for prosecutors to crack down on leaks. But in the end, the Trump Justice Department never bothered to revise the guidelines. They were still in effect when the department secretly obtained the phone records of reporters at The Post, the New York Times and CNN last year. Holder’s guidelines proved to be little more than a speed bump on the path to conducting secret surveillance of journalists.

Garland’s guidelines came in response to reports uncovering those efforts and the Biden administration’s initial move to continue pursuing the Trump-era subpoenas.

News media executives are right to praise Garland for getting rid of the ineffective Holder rules. But as someone who came close to being jailed in a seven-year battle with the Bush and the Obama administrations over whether I would be forced to testify about my confidential sources in a leak prosecution, I think it is too early to sing the praises of Garland’s new rules. Federal prosecutors are quite capable of finding new ways to undercut press freedom.

On paper, Garland’s guidelines look much better than Holder’s version, with wording that seems to include a more categorical prohibition on going after reporters.

Perhaps the most significant change is that Garland has dropped a “balancing test,” in which prosecutors could weigh supposed national security interests against the rights of a journalist in deciding whether to subpoena reporters or their communications. “It is really a substantial rethinking of the DOJ-press relationship,” said Bruce Brown, executive director of the Reporters Committee for Freedom of the Press.

But Garland’s guidelines still have loopholes, just smaller and less obvious. They allow the targeting of reporters and their communications when “necessary to prevent an imminent risk of death or serious bodily harm” from terrorism, as well as attacks on “critical infrastructure.” I clearly remember the years after 9/11 when the government kept the American public in fear over supposed plots to blow up the Brooklyn Bridge and other components of “critical infrastructure.” Will these guidelines wilt in the face of the next national security crisis?

More ominously, the guidelines seem to be in direct conflict with the Biden administration’s own efforts to prosecute Julian Assange, the WikiLeaks founder indicted by the Trump Justice Department under the Espionage Act.

The Garland guidelines ban the use of subpoenas against journalists even when they have “possessed or published” classified information. But those are precisely the grounds upon which the Justice Department is seeking to prosecute Assange. The 2019 indictment of Assange charged that he “was complicit” in “unlawfully obtaining and disclosing classified documents related to the national defense.” Assange was accused of obtaining classified documents from former Army intelligence analyst Chelsea Manning and then publishing those documents on WikiLeaks.

In January, a British judge blocked Assange’s extradition, but rather than drop the Trump-era case, the Biden Justice Department appealed.

Most depressing to me is that Garland’s new guidelines have received plaudits even as the Justice Department continues to prosecute and imprison journalists’ sources. The department is seeking a nine-year prison sentence for Daniel Hale, a former Air Force analyst who allegedly leaked information to the Intercept about targeted drone killings by the United States in the war on terrorism. That would be the longest prison sentence ever in a case involving a leak to the press.

Constant leak prosecutions are now accepted as a fact of life by the news media, when the truth is they almost never occurred before 9/11. Genuine reform of the way the Justice Department deals with the press will require Garland to return to the era before our endless wars and stop prosecuting whistleblowers who help reporters do their jobs.