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A nation must think before it acts.
The Department of Justice’s use of compulsory process to obtain information from journalists in criminal investigations has been much in the news after an outcry following revelations that the Trump Justice Department had secretly seized reporters’ telephone records in search of their sources during a 2017 leak investigation. Those disclosures, along with contemporaneous reports that the Justice Department also had subpoenaed information from Apple accounts maintained by Democratic lawmakers and staff in connection with a separate leak investigation, prompted Attorney General Merrick Garland to meet with senior executives from CNN, The New York Times and the Washington Post on June 14, 2021. Following that meeting, the publisher of the Times, A.G. Sulzberger, issued a statement calling for the Justice Department to “codify that it will no longer seize journalists’ records during leak investigations.” While Garland’s own comments were considered off the record under an agreement setting the parameters of the June 14th meeting, the Times’ newsroom lawyer, David McCraw, portrayed the discussion, centering on restricting the ability of leak investigators to pursue reporters’ data, as positive.
With all this as a prelude generating considerable pressure on the Attorney General to act, the Justice Department released a memorandum, dated July 19, 2021, directed to all levels of the federal prosecutorial chain and signed by Garland, clarifying departmental policy on the “Use of Compulsory Process to Obtain Information From, or Records of, Members of the News Media.”
Notably, the intense interest in the formulation of Justice Department policy regarding the seizure of journalists’ records or the compelled disclosure of their sources reflects the absence of a federal “shield law” affording such protection. While disappointing to many in the Fourth Estate, the First Amendment has never been judicially interpreted to afford constitutional protection against the compelled disclosure of records or the identity of sources and, though numerous states have enacted shield laws providing absolute or qualified protection to reporters’ notes or confidential sources, efforts by journalists and their supporters to secure similar protections at the federal level have never secured the requisite congressional approval. Consequently, the Justice Department standards n using compulsory process to acquire reporters’ records have historically been compiled as departmental policy and codified in the Code of Federal Regulations.