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DOJ codifies rule barring secret subpoenas of journalists’ records

<i>Drew Angerer/Getty Images</i><br/>U.S. Attorney General Merrick Garland
Drew Angerer
Drew Angerer/Getty Images
U.S. Attorney General Merrick Garland

By Jessica Schneider and Hannah Rabinowitz, CNN

Attorney General Merrick Garland announced Wednesday that the Justice Department formally introduced regulations barring department employees from secretly seeking journalists’ records except in limited circumstances.

The new regulations only allow prosecutors to subpoena records in certain circumstances, including if the information they are seeking is imperative to prevent a serious crime, if the journalist themselves are the target of an investigation, if the records involve already public information or if the journalist agrees to the disclosure of their records.

“These regulations recognize the crucial role that a free and independent press plays in our democracy,” Garland said in a statement Wednesday. “Because freedom of the press requires that members of the news media have the freedom to investigate and report the news, the new regulations are intended to provide enhanced protection to members of the news media from certain law enforcement tools and actions that might unreasonably impair newsgathering.”

Garland has said that he hopes the regulations will prevent future administrations from resuming the practice of targeting journalists.

The DOJ first adopted its new policy in July 2021, prohibiting the use of subpoenas, warrants, court orders and other compulsory legal process for the purpose of obtaining information from journalists when they’re acting within the scope of their newsgathering duties.

The new guidelines were released in the weeks after it was revealed that the Trump Justice Department had seized records from reporters at various news organizations, including CNN, The Washington Post and The New York Times. The Trump administration used the Justice Department on several occasions to secretly obtain communications of journalists or to expose the identity of critics of former President Donald Trump’s allies.

Within CNN, the Trump administration secretly sought and obtained the 2017 phone and email records of Pentagon Correspondent Barbara Starr. The Biden Justice Department informed Starr last May that prosecutors had obtained her records covering two months between June 1, 2017 and July 30, 2017. It remains unclear what the Trump administration was looking for in Starr’s records.

Under previous DOJ regulations, investigators could secretly obtain journalists’ records through a court order without the journalists’ knowledge. If the subpoenas were related to newsgathering activities, they had to be authorized by the attorney general. Investigators could keep the subpoenas secret when there was no longer a threat to the investigation or national security, or for no more than 90 days from the time the government received the information sought in the subpoena.

After news organizations first reported the records seizures in the summer 2021, President Joe Biden vowed to end the practice.

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