October 4, 2022

U.S. Attorney General Merrick Garland looks on as he announces that the Justice Department will terminate a press conference at the Department of Justice in Washington, DC, Jan.

Ken Cedeno | Reuters

The Justice Department on Monday formally prohibited federal prosecutors from confiscating information or records from journalists during leak investigations, with a few exceptions, undermining the ministry’s longstanding policies.

The ministry announced the policy change last month.

The change comes after revelations the department received records of journalists from CNN, The Washington Post and The New York Times in the last year of the Trump administration. This drew criticism from lawmakers, freedom of the press and President Joe Biden, who pledged in May to end the department’s practice.

Under the new directive, federal prosecutors are now banned from receiving journalist recordings, including telephone and digital recordings. You are also excluded from compelling statements by journalists.

However, the ban doesn’t apply if a journalist is the target of a criminal investigation or records fall outside of news-gathering activities, the memo said.

Other exceptions are if a journalist is an agent of a foreign power, is a member of a foreign terrorist organization, and if, according to the memo, receiving journalists’ records would prevent serious injury or death.

The department also noted that it would support laws that codify journalist protections, adding that assistant attorney Lisa Monaco will consult others to develop further regulations on the matter.

Prior to the change, the department could secretly obtain records from journalists from telephone and tech companies as long as they passed a “balance test” in which the interests of national security outweighs the interests of a free press. The government decided whether or not to pass the test, a process criticized by Attorney General Merrick Garland.

“A balancing test cannot properly weigh the vital national interest in protecting journalists from the forced disclosure of information revealing their sources, sources they need to educate the American people about how their administration works,” Garland said in a memo on Monday.

Several previous governments have secretly confiscated journalists’ records.

In 2013, the Obama administration received a journalist’s record from the Associated Press as part of an investigation into media leaks. Then Attorney General Eric Holder defended his department’s application of the practice. However, he later issued a revised set of guidelines for leak investigation, including requiring approval from the highest levels of the department to issue subpoenas.

Under former President Donald Trump, the ministry maintained these practices during investigations into Russia and other national security matters.

Freedom of the press organizations such as the Reporters’ Committee on Press Freedom have advocated the new policy.

“The Attorney General has taken a necessary and momentous step to protect freedom of the press at a critical time. This historic new policy will ensure journalists can do their job of informing the public without fear of the federal government tampering with their relationships with confidential sources. ”Said Executive Director of the Reporters’ Committee on Freedom of the Press, Bruce Brown.