Attorney General Pam Bondi has lifted a restriction on leak investigations that was enforced by the Justice Department over ten years ago, making it easier for investigators to bypass the legal barrier on search warrants for seizing journalistic records.
This protection was put in place in 2013 after it was discovered that the F.B.I. had characterized a Fox News reporter as a criminal to bypass limits on accessing journalists’ emails.
The revision announced by Ms. Bondi this week related to leak inquiries. The primary focus has been on how investigators can once again employ court orders, subpoenas, and search warrants to target reporters’ information, reversing a complete ban on these practices that was implemented in 2021 by Attorney General Merrick B. Garland.
In essence, Ms. Bondi reinstated the standard that existed prior to Mr. Garland’s changes. However, her decision also involved removing a significant part of the previous regulations that stemmed from the Fox News situation. This part had restricted investigators from evading a 1980 law that typically prohibits search warrants for newsroom records.
The removal was notable since many conservatives and Republicans had expressed outrage over the events that led the department, under Attorney General Eric H. Holder Jr., to implement the reform. The Fox News reporter in question, James Rosen, is now the chief White House correspondent for the conservative network, Newsmax.
In a memo last week announcing the end of Mr. Garland’s prohibition on using mandatory measures to pursue reporters’ communication records, notes, or testimony, Ms. Bondi stated: “This Justice Department will not accept unauthorized disclosures that undermine President Trump’s policies, harm government agencies, and jeopardize the American people.”
However, her memo did not mention any plan to remove the change initiated by the Fox News incident, which remained effective during the first Trump administration. The department’s press office did not respond when asked for a comment.
Gabe Rottman, vice president of policy for the Reporters Committee for Freedom of the Press, cautioned that this removal of protection increases the risk of “seeing a repeat of the James Rosen case,” raising significant First Amendment issues. He posted an analysis of the new regulation on his organization’s blog.
“Reducing or removing protections for journalists and their sensitive gathering materials harms not just the media but the public as well,” Mr. Rottman remarked. “It limits the public’s ability to hold the government accountable.”
The issue revolves around the Privacy Protection Act of 1980, which generally prohibits search warrants for journalism-related materials. However, the law has an exception for cases where reporters are considered criminal suspects.
In 2009, Mr. Rosen reported on North Korea’s nuclear test plans. The Justice Department initiated a leak investigation and ultimately charged State Department contractor Stephen Jin-Woo Kim. (In 2014, Mr. Kim pled guilty to unlawfully disclosing restricted information and received a 13-month prison sentence.)
Throughout the 20th century, it was quite rare for the Justice Department to pursue criminal charges in leak cases. However, this frequency increased during the George W. Bush administration and continued to rise under Mr. Holder’s leadership.
In May 2013, it was revealed that investigators had seized two months’ worth of Associated Press phone records, and had labeled Mr. Rosen’s reporting for Fox News as criminal in a warrant application, suggesting the unprecedented prosecution of a reporter for publishing information.
When seeking a warrant to access Mr. Rosen’s emails from Google, an F.B.I. agent informed a judge that “there is probable cause to believe that the reporter has committed or is committing a violation” of the Espionage Act, which criminalizes the unauthorized release of sensitive national security information — “as an aider and abettor and/or co-conspirator” with his source.
Critics from both political parties raised alarms that the Justice Department was overstepping its bounds in its crackdown on leaks. Some lawmakers even accused Mr. Holder of misleading Congress when he stated in previous testimony that he opposed such prosecution and had never discussed it.
Justice Department officials maintained that they never genuinely intended to prosecute Mr. Rosen, and had only labelled him a criminal suspect to utilize the exemption provided by the 1980 law. Critics argued that this justification effectively admitted the department exploited the law in bad faith.
“This tactic undermines the fundamental purpose of the Privacy Protection Act,” Mr. Rottman commented. “The law is designed to ensure that the government cannot pursue search warrants for a journalist’s records or unpublished stories unless it has probable cause to believe that the journalist has committed serious wrongdoing.”
In light of the widespread outcry, President Obama ordered a review of leak investigation procedures, expressing concern that investigative journalism might be suppressed. Mr. Holder frequently engaged with media leaders, acknowledging the criticism that the Justice Department had become overly aggressive in its enforcement.
He established new guidelines for leak investigations. These guidelines included a prohibition on portraying reporters as co-conspirators in criminal leaks solely to bypass the legal restrictions on secret search warrants for their reporting materials. His regulation asserted that investigators could only invoke the exception to the 1980 law if a journalist was formally under investigation.
These regulations remained intact until early in the Biden administration, when it surfaced that during the Trump administration, the Justice Department had seized reporters’ communication records from The New York Times, The Washington Post, and CNN.
President Biden instructed prosecutors to halt the seizure of reporters’ phone and email records. Mr. Garland implemented a regulation disallowing the Justice Department from using “compulsory legal processes to obtain information from or records of news media members acting within the scope of news gathering, except in limited situations.”
Last year, the House passed a bipartisan bill unanimously to bolster reporters’ abilities to protect confidential sources. However, it ultimately failed in the Senate after Mr. Trump directed Republicans to “kill this bill.”
