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Atty. Gen. Merrick Garland has made good on his promise not to seek telephone and other records of reporters through “compulsory process” — including subpoenas and warrants — with a few understandable exceptions. It's an important step forward in protecting journalists and the citizens they serve.
In a memo issued Monday, the attorney general indicated that the Justice Department will seek such information only in rare cases such as when a member of the news media is under investigation for violations of the criminal law unrelated to news gathering.
Garland’s action follows a comment by President Biden in May that seizing such records was “simply, simply wrong.” Biden spoke after revelations that the Justice Department had obtained the phone and email records of a CNN reporter and the phone records of three Washington Post reporters. In June, the New York Times reported that the department had secretly seized the telephone records of four of its reporters and that a separate attempt had been made to have Google turn over logs of its reporters’ emails. Prosecutors also sought to acquire email records of Post reporters.
It is tempting to see these actions as unique to the Trump administration, given its hostility to the news media and defensiveness about the 2016 Trump campaign’s contacts with Russia, the subject of at least some of the investigations.
But that is too simple. The effort to obtain the email logs of the Times reporters continued into the early days of the Biden administration. And the Obama administration in which Biden served as vice president also obtained reporters’ records as part of an overzealous campaign against leaks.
After criticism about its pursuit of the records of reporters, the Obama administration strengthened protections for journalists. But guidelines promulgated in 2015 by then-Atty. Gen. Eric H. Holder Jr. didn’t prevent the Trump Justice Department from secretly obtaining reporters’ records. Garland’s changes represent a major improvement.
Especially welcome is language in Garland's memo saying that the prohibition on “compulsory process” applies to situations in which a member of the news media “only possessed or published government information, including classified information.” The government can still use warrants or court orders to obtain the records of a government employee suspected of leaking classified information.
That’s a fair balance to strike. Government may do its best to keep information secret, but the press must be free to aggressively cover official wrongdoing or incompetence, even if that sometimes means acquiring information not authorized for public release.
Welcome as Garland’s action is, protections for news gathering shouldn’t depend on the preferences of the attorney general at a given time, a reality Garland acknowledged by promising to support legislation to codify protections for journalists in federal law. A good starting point would be the Protect Reporters From Exploitative State Spying Act introduced by Reps. Jamie Raskin (D-Md.), Ted Lieu (D-Torrance) and John Yarmuth (D-Ky.). Many states already have so-called shield laws protecting news gathering.
Garland has acted to protect a free and vigilant press; now Congress must act.
This story originally appeared in Los Angeles Times.