Biden DoJ raises eyebrows over pledge to stop obtaining journalists’ records on the sly

Justice Department officials have caused a stir following their announcement this week that the agency will no longer obtain the records of journalists in secret, leading to questions about the department’s conduct during the Trump administration in connection with leak probes.

Advocates for the media expressed approval over the department’s Saturday reversal, but it left questions about what ranking officials in the Biden administration knew and when regarding DoJ cases relating to reporters from a trio of news organizations and why the department still sought gag orders in two of those cases after President Joe Biden pronounced last month is is “simply wrong” to appropriate journalists’ records, The Hill reported Thursday.

“It’s a welcome policy change, but part of the problem is what we just don’t know. We have significant unanswered questions with regard to what happened in all three cases,” Gabe Rottman, director of the Technology and Press Freedom Project with the Reporters Committee for Freedom of the Press, told the outlet.

Justice Department officials had reached out to reporters and told them the department had seized phone records from The New York Times, The Washington Post, and CNN. In addition, email logs were collected from CNN.

The years-old investigations were linked to stories the outlets published early in Trump’s administration including one probe to see if then-FBI Director James Comey had provided details to reporters regarding a document he relied on to shut down an investigation into former Secretary of State Hillary Clinton, then Trump’s Democratic opponent in the 2016 election.

“This saga is just another reminder that much of what occurs in government is due to institutional practice, and that a mere shift in political power doesn’t immediately halt all ongoing executive branch actions,” said Bradley Moss, a national security lawyer, in an email to The Hill. He went on to claim that former President Trump’s administration sought to expand the scope and practice of leak probes that were initiated under the George W. Bush and Barack Obama administrations.

“The current leadership under [Attorney General Merrick] Garland is trying to sort out particular actions they believe warrant continuing for institutional and legal reasons, as opposed to those — such as the surveillance of reporters’ communications — they no longer view as necessary or appropriate,” Moss added.

In most cases, the Justice Department is required by policy to notify journalists as soon as investigators seek their records, but it wasn’t followed by the previous administration. Instead, Trump’s DoJ used a provision that gives the attorney general authority to delay reporter notifications if he believes there’s a “threat to the integrity of the investigation” or if there is a substantial risk to national security or death.

In those instances, the DoJ has to disclose that reporters’ records were obtained within 45 days, but the AG can wait an additional 45 days if he thinks it’s necessary. That 90-day window left it to the incoming Biden administration to issue the notifications but it isn’t clear if the current administration’s Justice Department actually met the deadline requirement.

“It’s also not completely clear how high up the chain decisions were made or why the agency continued to push for secrecy after Biden’s May 21 comments,” The Hill reported. “The Justice Department continued to seek gag orders on lawyers at both The New York Times and CNN to prevent attorneys from sharing the legal matter with new executives or reporters.”

Media advocates worry that a simple pledge by the Biden DoJ to end the practice of obtaining reporter records isn’t going to be good enough.

“If we’re going to stop a policy that happens again and again, we need a law to stop it,” Jake Laperruque, senior counsel for The Constitution Project at the Project on Government Oversight, told The Hill. He added that “the record of the last 20 years indicates the tendency is to do the opposite.”

Jon Dougherty

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