DOJ may adjust policy on subpoenas for leak probes to eliminate advanced notice rule

 

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With President Donald Trump instructing then-Attorney General Jeff Sessions in 2017 to look into leaks taking place at the Justice Department, the DOJ may change its policy regarding some subpoenas.

According to a senior official with direct knowledge, the DOJ is looking at adjusting current policy to do away with advance notice of a subpoena in media leak probes, according to The Daily Caller.

Advance notice to third parties related to a such investigations is required under existing guidelines and this hinders investigators’ efforts to discover who’s behind damaging national security leaks, the Daily Caller reported, citing officials familiar with the policy.

The requirement also impacts the ability to conduct timely investigations because of the time-consuming process of notifying media organizations.

With the FBI leaking like a sieve under fired director James Comey, who admitted to leaking his private notes of a meeting with President Trump, Sessions was looking to crack down here.

He said at an August 2017 press conference that the DOJ “has more than tripled the number of active leak investigations” since January of that year, Politico reported.

“We respect the important role that the press plays, and we’ll give them respect, but it is not unlimited,” Sessions said at the time. “They cannot place lives at risk with impunity. We must balance the press’ role with protecting our national security and the lives of those who serve in the intelligence community, the armed forces and all law-abiding Americans.”

A new team was created at the FBI to focus on leaks of classified information to the press and public.

Sessions said the bureau “has increased resources devoted to leak cases and created a new counterintelligence unit to manage these cases.”

(The only question being does the team on leaks include previous leakers?)

As noted by Latham & Watkins LLP, the policy was first established in 1974 and was revised in 2015 when President Obama directed then-Attorney General Eric Holder to review the department’s “policies and practices governing the use of law enforcement tools, including subpoenas, court orders, and search warrants, to obtain information or records from or concerning members of the news media.”

Members of the news media were reportedly consulted in revising the guidelines.

The policy of advance notice now states:

When the Attorney General has authorized the use of a subpoena, court order issued pursuant to 18 U.S.C. 2703(d) or 3123, or warrant to obtain from a third-party communications records or business records of a member of the news media, the affected member of the news media shall be given reasonable and timely notice of the Attorney General’s determination before the use of the subpoena, court order, or warrant, unless the Attorney General determines that, for compelling reasons, such notice would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm.

Tom Tillison

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