Late on Friday, Attorney General Pam Bondi released a memo rescinding Biden-era reforms to a long-standing policy — known as the “news media guidelines” — that limits when and how Justice Department attorneys can pursue records or testimony from journalists, including in cases involving the unauthorized disclosure of government secrets to the press, commonly known as “leaks.”
Notably, the memo doesn’t erase protections for journalists entirely. The precise contours of the changes are, however, unclear on the face of the Bondi memo, and it will be necessary to review the implementing regulation to fully assess the impact. That has yet to be published.
The Bondi memo comes at a time when leak investigations are all over the news.
But the Bondi memo appears to have rescinded a specific provision protecting journalists from Justice Department subpoenas, court orders and search warrants based on the “receipt, possession, or publication” of classified information. This change would make it easier for Justice Department attorneys to pursue journalists to identify confidential sources in reporting that involves leaks — like the Pentagon Papers or Watergate. And that could chill news reporting in the public interest.
Before getting into the specifics of why, it’s important to have some background.
During the first Nixon administration, the Justice Department pivoted to a more “law and order” posture. As part of that new focus, Justice Department attorneys tried to use subpoenas to force journalists to testify about their confidential sources and reporting. The most famous target was New York Times reporter Earl Caldwell, who had developed important sources in the Black Panthers that led to groundbreaking reporting and eventually a Supreme Court opinion on the reporters’ privilege.
Those moves against journalists generated a public firestorm, one that took even Attorney General John Mitchell aback.
In a “conciliatory step,” Mitchell announced the first news media guidelines. The guidelines, which don’t carry the force of law and were adopted voluntarily, included three main guardrails to prevent overreach. First, the attorney general had to personally approve a subpoena targeting a journalist. Second, Justice Department attorneys had to pursue the information from non-media sources before turning to the press. And, finally, the Justice Department had to provide some notice to the affected news organization or journalist of the subpoena. (It is worth noting that the Bondi memorandum appears to retain these basic requirements, but it remains to be seen in what specific form.)
The protections in the news media guidelines expanded over the following decades. The department amended them to cover telephone records in 1980. In the mid-2010s, Attorney General Eric Holder included limits on search warrants and created a presumption that journalists be notified before the Justice Department seeks to enforce subpoenas, court orders or warrants. That last change is key to ensure that news organizations are able to negotiate or challenge Justice Department demands for records before government investigators can access the material.
In early 2021, we learned that in the last year of the Trump administration the Justice Department had secretly authorized wide-ranging subpoenas and court orders for telephone and email records from eight journalists at CNN, The New York Times and The Washington Post — all in national security leak cases.
Following those revelations, Attorney General Merrick Garland announced major reforms to the guidelines. The Garland amendments prohibited Justice Department attorneys from using subpoenas, court orders or warrants to seek information from journalists acting with the “scope of newsgathering,” with only narrow exceptions.
It would be unfortunate but not surprising to see Justice Department now pursue journalists’ records and testimony in these or other leak investigations.
Crucially, as noted, the Garland reforms expressly defined “newsgathering” to include receiving, possessing or publishing leaked government information, including classified material. That’s significant because the disclosure of national defense secrets to any unauthorized person can be a crime under the Espionage Act of 1917 (though application to a journalist today for publishing classified information or accepting classified information from a source, more than 100 years after the law’s passage, would be met with First Amendment challenges).
Absent this protection, the Justice Department could argue that a journalist is in possession of information relevant to an investigation in an attempt to justify the use of subpoenas or court orders to seize the journalist’s records. The Bondi memo, by rescinding the Garland policy, seems to have dispensed with this protection, but we are, again, waiting on the implementing regulation.
So what should we expect?
Over the last decade and a half, administrations of both parties have aggressively prosecuted government employees and contractors under the Espionage Act for leaking to the media (the exception being President Joe Biden’s). President Barack Obama famously prosecuted more journalistic sources for leaking than all other presidents combined. Trump followed that trend in his first term. And Presidents George W. Bush, Obama and Trump, in his first administration, all sought sensitive newsgathering records from journalists as evidence in these cases.
Further, the Bondi memo comes at a time when leak investigations are all over the news. The memo cites, for instance, the ongoing leak probe at the Pentagon. National Intelligence Director Tulsi Gabbard also recently announced criminal referrals to the Justice Department in connection with alleged leaks, with an aide pointing to reporting on the Venezuelan gang Tren de Aragua.
In short, it would be unfortunate but not surprising to see the Justice Department now pursue journalists’ records and testimony in these or other leak investigations.
The ultimate takeaway, then, is that Congress needs to finally pass a federal “shield” law to protect journalists from having to identify their sources or reveal sensitive newsgathering information in legal proceedings. Every state, save Wyoming, recognizes these protections. At the federal level, however, despite repeated tries and broad bipartisan support, Congress has yet to get a law across the finish line, though it came close last year.
If the Bondi memo does presage a leak crackdown and the renewed targeting of journalists engaged in public interest newsgathering and reporting, it will be just one more example of why such a law is so desperately needed.