The Department of Justice (DOJ) has pledged to stop using court orders to obtain reporters’ records as part of leak probes, marking a policy shift away from an investigative tactic used across numerous administrations.
DOJ spokesperson Anthony Coley confirmed the policy turnabout in a June 5 statement, which followed a pledge last month by President Joe Biden, who said it was “simply wrong” to seize journalists’ records.
“Going forward, consistent with the president’s direction, this Department of Justice—in a change to its longstanding practice—will not seek compulsory legal process in leak investigations to obtain source information from members of the news media doing their jobs,” Coley said in the statement.
Coley noted the DOJ had completed a review to determine all instances in which it had pending compulsory requests from reporters in leak investigations and had notified the affected journalists.
“The Department strongly values a free press, protecting First Amendment values, and is committed to taking all appropriate steps to ensure the independence of journalists,” he said.
Democrat and Republican administrations alike have used subpoenas and court orders to obtain journalists’ records in a bid to identify sources leaking classified information. The most recent example of this practice was revealed on June 4, when The New York Times reported on the existence of a gag order that prevented the publication from revealing a court battle over efforts to obtain the email records of four of its reporters.
David McCraw, a lawyer for The New York Times, was cited in the report as saying that the gag order had been in effect since March 3, but had now been lifted by a federal court.
“While the White House does not intervene in criminal investigations, the issuing of subpoenas for the records of reporters in leak investigations is not consistent with the president’s policy direction to the department, and the Department of Justice has reconfirmed it will not be used moving forward,” Psaki said in the statement.
The move was hailed by press freedom advocates.
“This announcement is a potential sea change for press freedom rights in the United States. Over the past decade—spanning multiple administrations run by both parties—the Justice Department has increasingly spied on reporters doing their job, casting a chill over investigative reporting and putting countless whistleblowers at risk,” Freedom of the Press Foundation Executive Director Trevor Timm said in a statement.
While Timm said the press freedom advocacy group was “encouraged to see this announcement ending this invasive and disturbing tactic,” he noted that “the devil is—of course—in the details,” and urged the DOJ to formally incorporate the policy shift into its media guidelines, while calling for Congress to pass laws “to ensure no administration can abuse its power again.”
The DOJ didn’t respond to a request for comment by press time.
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