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.”
The new policy comes as advertised. It prohibits prosecutors from using subpoenas or other compelled legal process to obtain records of media members based on news gathering activities. It goes further than the media policy implemented during the Obama administration, which set a steep bar for approval, such as high-level DOJ sign-off, a showing of necessity, and timely notice to the news media of the collection. But that policy did not explicitly prohibit collection of reporter’s records. To lock in the new guardrails, Garland has called on Congress to pass legislation to ensure that future administrations cannot revert to past practices.
But wisely, the new policy is not “absolute.” It includes some important exceptions. For example, the policy does not apply to government employees who leak to reporters, permitting prosecutors to obtain their records. It also does not apply to journalists under investigation for crimes unrelated to news gathering, treating them in that context like any other citizen. The policy also excludes foreign powers and their agents, making them fair game for investigation. And it allows collection of records to prevent death or serious bodily injury.
The new policy is laudable because it acknowledges the importance of our nation’s commitment to a free press. A vigorous press has served an important watchdog role throughout American history to uncover government misconduct. The reporting of Bob Woodward and Carl Bernstein famously helped to uncover the Watergate scandal during the Nixon administration. In the landmark case of New York Times Co. v. United States, the Supreme Court in 1971 declined to permit a prior restraint against publishing a report known as the Pentagon Papers, which disclosed information about the country’s involvement in the Vietnam War. As Justice Hugo Black wrote in his concurring opinion, “In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors.”
In addition to its watchdog role, a free press ensures that our nation has an informed electorate, which is essential to a functioning democracy. This role has become all the more important in an era when our adversaries — and even some of our own politicians — engage in disinformation campaigns. While former President Donald Trump declared the media the “enemy of the people,” we have seen a golden age of journalism in which reporters have provided the transparency essential to a healthy society.
When prosecutors use court processes to gather reporters’ communications records, they create a chilling effect on potential sources, hampering the functioning of a free press. Stifling the press by threatening criminal prosecution is the stuff of authoritarian dictators.
Some may argue that the new policy does not go far enough to protect the media because it creates exceptions that threaten to swallow the rule. But an “absolute” commitment to refrain from investigating leaks of national security information from reporters would be an unwise policy choice. In the Pentagon Papers case, Justice William Brennan wrote in a separate concurring opinion that on some matters, national security concerns would override free press rights, such as “the publication of the sailing dates of transports or the number and location of troops.”
Recent reporting provides a good illustration of this tension. In late 2020, federal prosecutors were investigating leaks that occurred in 2017, including the disclosure of recorded telephone conversations between incoming National Security Adviser Michael Flynn and Russian Ambassador Sergey Kislyak that were reported in the Washington Post. Those conversations served as the basis for Flynn’s prosecution for lying to the FBI. They were likely recorded pursuant to an order issued under the Foreign Intelligence Surveillance Act. If so, the conversations would be, by definition, classified. Disclosing their contents to anyone without a security clearance is a potential criminal violation of the Espionage Act. The disclosing government employee and the reporter could potentially be prosecuted for the violation. On the one hand, the reporting about Flynn’s conversation with Kislyak led to healthy public questioning of Vice President Mike Pence that revealed inconsistencies between the recorded conversation and public statements by the administration and led to Flynn’s eventual firing. On the other hand, reporting about the leaked conversation fed the false narrative of a “deep state” plot to undermine members of the Trump administration, and ultimately led to Flynn’s withdrawn guilty plea, DOJ’s motion to dismiss his case, and his full pardon from Trump. Public disclosure of the conversation also tipped off members of the Trump transition team who were questioned by investigators for the Special Counsel looking into the Trump campaign’s links to Russia. Without advance knowledge of those conversations provided by press reports, perhaps the outcome of that investigation could have been different. And of course, the report also tipped off Russia that Kislyak’s conversations were being recorded.
The new policy would make it more difficult to investigate this leak, but not impossible. Instead of seeking the reporter’s records, prosecutors would need to examine records of government employees who were the likely leakers. In light of their promises to safeguard classified information as a condition of their employment, government employees remain subject to having their records examined by prosecutors. This policy choice seems to strike the right balance by protecting reporters engaged in news gathering from investigation and prosecution but deterring government employees from betraying the national security secrets entrusted to them.
A free press is the bedrock of self-government. Thomas Jefferson believed that “[o]ur liberty depends on freedom of the press.” But as U.S. Supreme Court Justice Robert Jackson wrote in a dissenting opinion in 1949, if we do not temper logic with practical wisdom, we “will convert the constitutional Bill of Rights into a suicide pact.”