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AG Garland Bars Prosecutors From Seizing Journalists’ Records, Won’t Be Prosecuting Trump Officials Over Census

BY July 19, 2021

Attorney General Merrick Garland formally prohibited federal prosecutors from seizing the records of journalists in leak investigations on Monday, with limited exceptions, reversing years of department policy.

The new policy largely codifies the commitment Garland made in June when he said the Justice Department would abandon the practice of seizing reporters’ records in leak investigations. It aims to resolve a politically thorny issue that has long vexed Justice Department prosecutors trying to weigh the media’s First Amendment rights against the government’s desire to protect classified information.

[Photo by WIN MCNAMEE/POOL/AFP via Getty Images]J

But the memo makes clear that federal prosecutors can, in some cases, seize journalists’ records, including if the reporters are suspected of working for agents of a foreign power or terrorist organizations. There is also an exception for situations with imminent risks, like kidnappings or crimes against children.

Garland was moved to act following an outcry over revelations that the department during the Trump administration had obtained records belonging to journalists at The Washington Post, CNN, and The New York Times as part of investigations into who had disclosed government secrets related to the Russia investigation and other national security matters. Others whose records were obtained were members of Congress and their staffers and former White House counsel Don McGahn.

Garland’s announcement came after President Joe Biden said he would not allow the Justice Department to seize journalists’ phone records and emails, calling the practice “wrong.” Since then, Garland and other senior Justice Department staffers have met with representatives of news media organizations, with both sides agreeing on the need for new department policies. Garland has also said he would support federal legislation to add additional protections for journalists.

While that’s a good move, Garland was also receiving heavy criticism Monday for the DOJ’s decision to not prosecute former Commerce Department Secretary Wilbur Ross after an inspector general confirmed he and others provided false testimony regarding the origins of the proposed citizenship question on the 2020 census. The investigators did not make their report public, citing Privacy Act concerns, but said in a letter to Senate Majority Leader Chuck Schumer, D-N.Y., and Rep. Carolyn Maloney, D-N.Y., that Ross and other officials played a “substantive role” in proposing the addition of the citizenship question to the census. The proposal caused significant controversy as critics said it would deter non-citizens from participating in the count at all and it was eventually struck down by the Supreme Court.



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