Attorney General Merrick Garland on Monday formally prohibited federal prosecutors from seizing the records of journalists in leak investigations, with limited exceptions, reversing years of department policy.
The new policy largely codifies the commitment Garland made in June, when he said the Justice Department would abandon the practice of seizing reporters’ records as part of efforts to uncover confidential sources. It aims to resolve a politically thorny issue that has long vexed Justice Department prosecutors trying to weigh the media’s First Amendment rights against the government’s desire to protect classified information.
“The United States has, of course, an important national interest in protecting national security information against unauthorized disclosure,” Garland wrote in his memo. “But a balancing test may fail to properly weight the important national interest in protecting journalists from compelled disclosure of information revealing their sources, sources they need to apprise the American people of the workings of their government.”
The memo makes clear that federal prosecutors can, in some cases, obtain journalists’ records. Those exceptions include if the reporters are suspected of working for agents of a foreign power or terrorist organizations, if they are under investigation for unrelated activities or if they obtained their information through criminal methods like breaking and entering. There are also exceptions for situations with imminent risks, like kidnappings or crimes against children.
Garland was moved to act following an outcry over revelations that the department during the Trump administration had obtained records belonging to journalists at The Washington Post, CNN and The New York Times as part of the investigation into who had disclosed government secrets related to the Russia investigation and other national security matters.
Others whose records were obtained were Democratic members of Congress and aides and former White House counsel Don McGahn.
