For months now, the Department of Justice (DOJ) quietly has been working on a revision to its guidelines governing how, when and why prosecutors can obtain the records of journalists, particularly in leak cases.
The work has been supervised by Deputy Attorney General Rod Rosenstein’s office, especially since former Attorney General Jeff Sessions departed, but is not wrapped up.
{mosads}The effort has the potential to touch off a First Amendment debate with a press corps that already has high degrees of distrust of and disfunction with the Trump administration.
Acting Attorney General Matt Whitaker is aware of the effort but has not been given a final recommendation. Sources close to Whitaker say he will await final judgment but, in recent days, has developed reservations about proceeding with the plan.
“After a lengthy period of turmoil and regular criticism from President Trump, DOJ has enjoyed a period of calm normalcy that has put employees’ focus back on their work and not the next tweet. Matt doesn’t want to disrupt that unless a strong legal case can be made,” a source close to the acting AG told me.
The current guidelines have their origins back to a time when Bill Clinton was president and Janet Reno was attorney general, long before WikiLeaks was a twinkle in Julian Assange’s eye. They were designed to strike a balance between law enforcement’s investigative interests and the First Amendment rights of reporters.
In layman’s terms, the current system requires prosecutors in most cases to exhaust all obvious investigative methods for identifying leaks before seeking to intrude on a journalist’s free-speech rights.
In addition, the rules generally have required DOJ to alert news organizations in advance of a possible subpoena, giving both sides a chance to negotiate before the subpoena — viewed as a nuclear button by most journalists — gets pushed.
Multiple sources familiar with the ongoing DOJ review tell me that it has two main goals. The first is to lower the threshold that prosecutors must meet before requesting subpoenas for journalists’ records; the second is to eliminate the need to alert a media organization that Justice intends to issue a subpoena.
{mossecondads}With Rosenstein signaling last week that he plans to step aside in a few weeks, palace intrigue has risen inside Justice about whether the rule changes will be finished and whether Whitaker might reject them.
If not, a process begun under Sessions could drag into the tenure of a new attorney general. Trump has nominated William Barr for the job, which Barr held under President George H.W. Bush three decades earlier.
According to my sources, the arguments for changing the rules emanate from the stresses that a massive increase in criminal leak investigations have placed on the DOJ.
Sessions disclosed more than a year ago that there has been a threefold increase in criminal leak probes, which have ensnared everyone from fired FBI deputy director Andrew McCabe to a senior Senate staffer who handled classified documents.
Advocates for the change argue that prosecutors have spent inordinate time and resources trying to find leakers that could be more easily detected via the reporting news organization’s subpoenaed records. The savings in resources could be deployed to other criminal enforcement endeavors, advocates argue.
They also contend that current rules treat journalists as a special class whose First Amendment rights are elevated above those of other Americans, something they don’t believe the Founding Fathers intended. “The view is all men and woman were created equal and that becoming a journalist shouldn’t suddenly change that equilibrium,” explained one source.
Journalists, on the other hand, are certain to be alarmed by any proposed change, just as they were when the Obama administration escalated its prosecution of leakers and targeted journalists such as James Rosen for scrutiny because of what they reported.
{mossecondads}For a quarter-century or more, the rules have stood even as the breadth of national security leaks and numbers of professional leakers such as Julian Assange and Edward Snowden have proliferated.
Rosenstein’s effort, whether successful or not, is certain to foster a debate.
I, for one, have a special vantage point molded by personal experience.
As an investigative journalist for The Associated Press at the start of George W. Bush’s administration, the Justice Department and then-Deputy Attorney General Robert Mueller — yes, the same one now running the Russia investigation — subpoenaed my phone records without notifying AP.
Justice then took special steps to delay notifying me for months, a delay that allowed Mueller’s nomination as FBI director to be confirmed by the Senate before lawmakers could learn of the intrusion on my First Amendment-protected reporting.
There was an outcry, but it didn’t stop Justice from further intrusion. A few months after seizing my phone records without the normal notification, the DOJ went a step further and seized my personal mail through the FBI, where Mueller was then the boss.
This time, they didn’t use a subpoena or a warrant. They used an archaic legal concept known as “border-search authority” to open a package coming from the Philippines that included a legacy FBI lab report sent to me by a source.
The report was neither classified nor deemed sensitive. It simply was embarrassing to the FBI because it showed the bureau was aware of al Qaeda terrorist plots targeting airliners well before the 9/11 attacks.
After finding the report, the FBI kept the document from me without seeking a warrant or subpoena — a clear, unequivocal violation of my Fourth Amendment protections against illegal search and seizure.
When my package didn’t arrive, I became suspicious and eventually proved that the FBI had confiscated it illegally. When confronted, the FBI admitted it had engaged in wrongdoing and the bureau, DOJ and AP lawyers worked together to put rules in place to avoid the type of abuses to which I’d been subjected.
My case showed that, even with rules in place, the DOJ and FBI had the means, motive and will to trample on the First Amendment rights of a free press. Furthermore, I saw the chilling effect that government intrusion had on my work: Well-intentioned sources were afraid to talk to me or to meet, for fear they would be caught in a dragnet.
It took months, years, to recover from that harm.
Today’s effort to loosen those rules, I fear, only increases the risk that professional journalists will face intrusions on their reporting for convenience rather than necessity.
And that is a legacy that no freedom-loving, Constitution-abiding deputy attorney general or acting attorney general should want on their professional resume.
John Solomon is an award-winning investigative journalist whose work over the years has exposed U.S. and FBI intelligence failures before the Sept. 11 attacks, federal scientists’ misuse of foster children and veterans in drug experiments, and numerous cases of political corruption. He is The Hill’s executive vice president for video.