Attorney General Merrick Garland has decided to prohibit federal prosecutors from reporters’ records during leak investigations, with limited exceptions, The Associated Press reported.
The decision came after President Joe Biden said in May that he would not allow the Department of Justice (DOJ) to seize journalists’ phone records and emails, calling the practice “simply wrong.”
In June, Garland pledged to abandon the practice, aiming to resolve the issue that has long vexed the Department of Justice prosecutors trying to weigh the media’s First Amendment rights against the government’s desire to protect classified information.
In a statement on Monday, July 19, DOJ said it has formally adopted a new policy restricting the use of the compulsory process to obtain information from, or records of, members of the news media acting within the scope of newsgathering activities.
“Because a free and independent press is vital to the functioning of our democracy, the Department of Justice has long employed procedural protections and a balancing test to restrict the use of compulsory process to obtain information from or records of members of the news media,” Garland wrote in his memo.
“The United States has, of course, an important national interest in protecting national security information against unauthorized disclosure,” Garland continued. “But a balancing test may fail to properly weight the important national interest in protecting journalists from compelled disclosure of information revealing their sources, sources they need to apprise the American people of the workings of their government.”
The memo made clear that federal prosecutors can, in some cases, obtain journalists’ records. Those exceptions include if the reporters are suspected of working for agents of a foreign power or terrorist organizations, if they are under investigation for unrelated activities, or obtained their information through criminal methods like breaking and entering.
There are also exceptions for situations with imminent risks, like kidnappings or crimes against children.
In the memo, the attorney general also said he would support federal legislation to add protections for journalists.