By Barb McQuade
This week, Attorney General Merrick Garland issued a new policy for obtaining reporters’ communications records. His announcement marks a victory for the First Amendment right to a free press, with an important recognition of pragmatic nuance.
The policy change came in response to recent reports that during the Trump administration, federal prosecutors sought journalists’ communications records in a number of leak investigations. Department of Justice attorneys reportedly used subpoenas and court orders to obtain records of reporters for CNN, the New York Times and the Washington Post. Calling the collection of reporters’ communications records “simply, simply wrong,” President Joe Biden said that he would “absolutely” bar prosecutors in his administration from obtaining them. “I will not let that happen,” he said at the time. In June, Garland met with news media representatives to hear their concerns, and stated that DOJ would no longer “use compulsory process to obtain reporters’ source information when they are doing their jobs."