The Justice Department is putting a stop to the seizure of reporters’ records as part of leak investigations, a significant shift in policy that comes amid controversy over the practice. The move comes shortly after President Joe Biden made clear he disagreed with the practice. “Absolutely, positively, it’s wrong,” Biden said last month. At the time he said he would “not let that happen” under his watch and now the Justice Department has made it official. “Going forward, consistent with the President’s direction, this Department of Justice—in a change to its longstanding practice—will not seek compulsory legal process in leak investigations to obtain source information from members of the news media doing their jobs,” Anthony Coley, the department’s spokesman, said in a statement.
The change comes a day after the New York Times revealed that a gag order had been in place that forbade the newspaper from revealing that it was embroiled in a legal battle with the Justice Department that was seeking to obtain email logs of four of its reporters. The effort had started under Donald Trump’s administration, which never told the paper about the move to obtain the records. Once Biden took over, a couple of Times executives were told about the effort but they imposed a gag order preventing the information from becoming public. White House press secretary Jen Psaki said no one at the White House knew about it until Friday night. “While the White House does not intervene in criminal investigations, the issuing of subpoenas for the records of reporters in leak investigations is not consistent with the President’s policy direction to the Department, and the Department of Justice has reconfirmed it will not be used moving forward,” Psaki said.
The change is a marked shift in policy considering both Democratic and Republican administrations had sought reporters’ records as part of leak investigations. Under former President Barack Obama, for example, the Justice Department went after records by the Associated Press and Fox News. After there was backlash to those efforts, then-Attorney General Eric Holder tightened up the process to put in more checks in place before subpoenas for records held by media outlets could issued. But the practice continued and was used as part of several investigations under Trump’s administration.