White House Supports Barring Seizures of Reporters’ Phone Data

But the Justice Department is not commenting on whether a seemingly off-the-cuff remark by President Biden is now a policy directive.


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WASHINGTON — A White House spokeswoman appeared to confirm on Monday that the Biden administration would not permit federal prosecutors to seize reporters’ phone and email records in leak investigations, a potentially major change in law enforcement policy that President Biden promised in a seemingly off-the-cuff remark last week.

The Justice Department in recent weeks belatedly notified The Washington Post and CNN that under President Donald J. Trump, it had secretly subpoenaed their reporters’ communications records. Against that backdrop on Friday, a CNN reporter asked Mr. Biden whether he would prevent the department from going after journalists’ data.

After joking with the reporter, the president became serious, saying: “Absolutely, positively — it’s wrong. It’s simply, simply wrong. I will not let that happen.”

“It’s simply, simply wrong. I will not let that happen,” President Biden tells me about the Justice Department seizing the records of reporters. pic.twitter.com/bRL88NssMr

— Kaitlan Collins (@kaitlancollins)

May 21, 2021

The unambiguous nature of the comment was significant because the Justice Department, under presidents of both parties, has recently used tools of legal compulsion, like subpoenas to phone companies, to hunt for reporters’ sources in leak investigations.

That raised the question of whether administration officials would try to walk back Mr. Biden’s statement — which he had made while chatting with reporters after a joint news conference with President Moon Jae-in of South Korea at the White House — to preserve flexibility for prosecutors if they thought it was necessary in a future leak investigation.

But at a news briefing on Monday, Jen Psaki, the White House press secretary, did not try to soften Mr. Biden’s declaration. She instead characterized the president as thinking that the Justice Department during the Trump administration had abused its power “to intimidate journalists.”

And while Ms. Psaki would not say whether Mr. Biden had spoken to Attorney General Merrick B. Garland to convey his vow as a policy directive, she said, “the president made those comments quite publicly, so everyone, I think, is aware.”

Still, a spokesman for Mr. Garland declined to comment on Monday when asked about Mr. Biden’s remarks and whether they were now policy.

Prosecutors’ use of subpoenas, and sometimes search warrants, to learn who has been talking to reporters has been a growing practice during the past three administrations — a period when the Justice Department grew far more aggressive about charging officials with crimes for disclosing national security secrets to reporters.

The trend of more regularly treating leaks as crimes began midway through George W. Bush’s presidency and extended through Barack Obama and Mr. Trump’s administrations. And as such prosecutions became more common, investigators sometimes went after reporters’ communications records, causing recurring controversy.

A particularly intense moment came in May 2013, when it was revealed in short order that the Obama Justice Department had, in unrelated leak investigations, seized phone records for reporters at The Associated Press and used a search warrant to obtain a Fox News reporter’s emails.

In the latter case, the search warrant application had also characterized the reporter as a criminal conspirator, raising fears that the department was about to escalate its crackdown on leaks into prosecuting reporters. The Justice Department said at the time that it never intended to charge the reporter and had instead used those words in order to invoke an exception a general legal prohibition on search warrants for journalistic material.

The disclosures prompted an uproar among lawmakers of both parties and among press-freedoms advocates, and senior Obama administration officials decided that criminal leak cases had grown out of control. Mr. Obama instructed the attorney general at the time, Eric H. Holder Jr., to review the department’s guidelines for criminal investigations that affect the news media, and Mr. Holder came up with a tightened set of leak-case guidelines.

The changes included strengthening a preference for notifying a news organization in advance about a planned subpoena so it could negotiate or fight in court over its scope. Mr. Holder also required higher-level approval before prosecutors could subpoena journalists for testimony or notes. And he banned portraying reporters as criminal conspirators, unless prosecutors really intended to charge them with a crime.

After the controversy and Mr. Holder’s changes, the rate of new leak cases dropped significantly during Mr. Obama’s second term. But under Mr. Trump, who liked to attack the news media as the “enemy of the people,” it resurged. In August 2017, Attorney General Jeff Sessions said that the number of such inquiries had tripled.

The Trump Justice Department went on to charge several current or former officials with leaking or with other crimes arising from leak investigations. It broke new ground by charging the WikiLeaks founder, Julian Assange, with a crime for the journalistic-style activities of soliciting and publishing classified information. (The Biden administration has pressed forward with an effort to extradite him.)

While the regulations Mr. Holder had issued remained in place, in practice the Trump Justice Department repeatedly seized reporters’ records in secret and without advance notification. In addition to recent disclosures about reporters at The Washington Post and CNN, it emerged in a 2018 case that the department had subpoenaed a New York Times reporter’s records when she worked at Buzzfeed News and Politico in 2017.

At a White House briefing on Friday, before Mr. Biden’s remarks, Ms. Psaki had evaded a question about whether the administration thought subpoenas for reporters’ phone records were an “appropriate tactic.” She said the administration intended “to use the Holder model as their model, not the model of the last several years, but really these decisions would be up to the Justice Department.”

But at the briefing on Monday, Ms. Psaki indicated that Mr. Biden saw such subpoenas as an abuse of power. Still, she framed the practice as something the Trump administration had done, making no mention of the similar record during Mr. Obama’s first term.

“What I can convey is that the president spoke clearly that he won’t allow the abuse of power to intimidate journalists, and he is alarmed by the reports of numerous abuses of power regarding the previous — how the previous administration used the powers of the Department of Justice,” she said, “and thought it was right to speak out.”

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