US 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 in investigations of government leaks to the news media.
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.
“A free and independent press is vital to the functioning of our democracy,” the memo says. “The Department of Justice will no longer use compulsory legal process for the purpose of obtaining information from or records of members of the news media acting within the scope of newsgathering activities.”
But the memo makes clear that federal prosecutors can, in some cases, seize journalists’ records, including if the reporters are suspected of working for agents of a foreign power or terrorist organisations. There is also an exception for situations with imminent risks, like kidnappings or crimes against children.
A journalist who is the target or subject of a criminal investigation, for instance, can still have his or her records seized in matters not connected to their “newsgathering activities”, as can someone who has used “criminal methods” to obtain the information.
However, the policy makes it clear that prosecutors cannot subpoena a reporter’s records merely because the reporter possesses or publishes classified information.