DOJ Double-Dribbles on Leak Subpoenas, As Probes Start

June 23, 2021
Attorney General Merrick Garland met directly with representatives of major news outlets in mid-June on ending an administration policy allowing journalists to be subpoenaed to find news leaks. Above, Garland addressing DOJ staff in March. Photo: Department of Justice. Click to enlarge.

WatchDog Opinion: DOJ Double-Dribbles on Leak Subpoenas, As Probes Start

By Joseph A. Davis

Journalists need leaks — and the public needs them even more. The question of whether the Justice Department can use its powers secretly to suppress leaks is blowing up on the network news. At stake is whether reporters can talk privately to their sources or guarantee them confidentiality.

Every journalist should care about this issue because it could determine every journalist’s ability to get important news. It is worth remembering how many stories on the environmental beat since 2017 have resulted from tips and leaks.

While the source of scandalous documents in many cases is known (witness coal magnate Robert Murray’s to-do list for the Trump EPA, which he proudly shared), many others have come from anonymous sources.

  • The U.S. Environmental Protection Agency’s Inspector General’s office in 2018 reported that it could not find (having tried) who leaked Administrator Scott Pruitt’s travel records to the press.
  • A leaked memo in 2018 gave CNN a story about how Administrator Pruitt had taken all control over key regulatory decisions on water pollution.
  • When Interior Secretary Ryan Zinke sent President Trump a secret memo recommending shrinking national monuments, it soon leaked (may require subscription) to the Washington Post.


Trump DOJ snoops seize phone records

Over the past two months information has come to light about Trump administration subpoenas to find leaks to The New York Times (may require subscription), The Washington Post and CNN. The Justice Department, at White House urging, seized reporters’ phone records and then ordered Apple and Google to keep the seizure secret.


Because of the gag order,

the reporters at the news outlets

did not know their phones and emails

were being spied on by Trump.


Because of the gag order, the reporters at the news outlets did not know their phones and emails were being spied on by Trump. It was a big deal to press freedom fans, who protested.

But it didn’t start dominating the daily news cycle until June 10, when The Times broke the story (may require subscription) that Trump DOJ snoops had also seized phone records for Reps. Adam Schiff and Eric Swalwell, both Democrats from California.

Schiff, later chair of the House Intelligence Committee, was then leading Congressional inquiries into Trump’s possible collusion with Russian efforts to hack the U.S. election in his favor in 2016. Swalwell was also a leader in the probe. DOJ’s subpoenas also extended to phone records of key staff, family members and even minor children.

As outrage mounted and swelled, the Biden administration tried to address it. On May 21, President Biden, in a quick offhand statement, said he wouldn’t allow DOJ to seize reporters’ records, and that it was “simply wrong.”

But it wasn’t until June 5, a Saturday, that the Justice Department itself announced that it would no longer seize reporters’ records.

That news came from DOJ spokesman Anthony Coley to a cadre of beat reporters, but never made it to the media page on the agency’s website. It was not attributed to Attorney General Merrick Garland or any other DOJ top brass. It did not clear much up because it was not a documented official policy from any actual DOJ decision-maker.

As a matter of fact, the Justice Department had had an official policy of sorts on subpoenas to reporters, and Coley did acknowledge in an unofficial way that the agency was changing its policy. Or meant to.


Origins of DOJ approach to news media subpoenas

The news media subpoena policy had an important backstory — and now that it is unofficially obsolete, it is worth knowing how much went into it.

It’s also worth knowing because the policy, which was meant to rein in DOJ subpoenas of reporters, is still the closest thing, legalistically speaking, to something with the force of law (which it never had). It’s in the Federal Register. (But those wishing to learn from history might note that it did not rein in Trump’s DOJ.)

It arose after some earlier DOJ leak probes during the Obama administration in 2012 (may require subscription), when the agency secretly got records of reporters from the Associated Press and Fox.

In response to the resulting media outrage, Obama and Attorney General Eric Holder spent two years negotiating new “guidelines,” released in 2015 (may require subscription). They were just guidelines. Some in the media (including the Reporters Committee for Freedom of the Press) took them quite seriously. It turned out that Donald Trump and his Justice Department flunkies did not.

It was believed back then that such subpoenas had to be approved by the attorney general himself, and that reporters had to be notified ahead of time. None of that happened under Trump. They were just guidelines, after all.

This was all predicted in a 2016 op-ed (may require subscription) column by then-New York Times reporter James Risen, who prophetically suggested the guidelines would allow Trump to spy on journalists. Risen had been a press-freedom poster child during the Obama administration, which used legal threats to try to force him to disclose (may require subscription) confidential sources. He didn’t.


Biden policy unclear

While Trump’s stance toward the press (which he called “the enemy of the people”) was clear enough, the Biden administration’s is less so.

Specifically, Attorney General Garland had not personally weighed in on news media freedoms until very late in the game. This echoes a broader pattern of DOJ reluctance to disown and reverse Trump positions.

Whatever commitment there may be from Biden himself and the White House is hard to see at DOJ. In that context it becomes meaningful that the gag orders that hid the Trump seizure of reporters and Congress members’ phone records were continued for several months under Biden.

So now, the consequence is that Biden’s Justice Department itself will be among the targets of new investigations. By the tentativeness and murkiness of its response, the Biden DOJ has shot itself in the foot.

The first investigation will be by the DOJ’s own Inspector General Michael E. Horowitz, who is well-respected and came in under Obama. That was announced June 11 by the IG. It will cover seizures of records of both the media and Congress members.

The second flank will be investigations by Congress itself. The House Judiciary Committee will hold one probe, and another is expected from the Senate Judiciary Committee.


Good news, bad news of Garland meeting

Finally, on June 14, Garland engaged. He issued a personal statement saying he would direct DOJ leaders to review and strengthen subpoena policies, and he met personally for some 90 minutes with top news execs from The Times, The Post and CNN, as well as Bruce Brown, executive director of the Reporters Committee for Freedom of the Press.

They got to articulate their complaints, especially about the gag orders. That was the good news.


The meeting demonstrated that any

DOJ subpoena policy could easily be

ignored by any subsequent administration

that did not want to follow it.


The bad news, if there was any, is that the meeting was “off the record.” More bad news, perhaps, was that the meeting demonstrated that any DOJ subpoena policy was only as strong as the good faith of the DOJ officials declaring it — it could easily be ignored or blown off by any subsequent administration that did not want to follow it.

What the news execs got, apparently, was a promise to do better, rather than a detailed official document stating the policy. That, it seems, is still to come.

The upshot is that only something stronger will solve the problem. Just what is not yet clear. Would it be something like a DOJ Office of Legal Counsel opinion, given such weight by special counsel Robert Mueller? Would it be something in the Federal Register, perhaps with the force of regulation rather than “guidelines”?

The best solution, but unfortunately the least likely right now, would be for Congress to put a source-protection policy in the form of legislation — and pass it.

That would be a federal shield law — giving journalists the “privilege” of protecting their sources. Today, 49 states and the District of Columbia have such laws. Congress during the Obama administration, in 2009, actually came within a whisker of enacting one.

By the way, the Society of Environmental Journalists has supported a federal shield law in various forms over the years. But it will probably take a different Congress to pass one.

Joseph A. Davis is a freelance writer/editor in Washington, D.C. who has been writing about the environment since 1976. He writes SEJournal Online's TipSheet, Reporter's Toolbox and Issue Backgrounder, as well as compiling SEJ's weekday news headlines service EJToday. Davis also directs SEJ's Freedom of Information Project and writes the WatchDog opinion column and WatchDog Alert.

* From the weekly news magazine SEJournal Online, Vol. 6, No. 25. Content from each new issue of SEJournal Online is available to the public via the SEJournal Online main page. Subscribe to the e-newsletter here. And see past issues of the SEJournal archived here.

SEJ Publication Types: