AG Permits Journalist Subpoenas in Leak Investigations

The Trump administration fired another salvo in its battle with the press. On April 25, Attorney General Pam Bondi issued a memorandum outlining when the Department of Justice can obtain information from the news media, rescinding the previous DOJ policy. On May 1, the Department released the new regulations, which largely return to the procedures put in place in 2014. Her memo and the regulations include nods to important press protections and require top DOJ approvals, but also suggests search warrants as well as subpoenas will be used to obtain information from the news media in leak investigations of classified and even unclassified information.

For years, DOJ has significantly limited when and how DOJ prosecutors can serve subpoenas or other legal process to get records from the news media. Previous policies required that the Attorney General or their designee personally approve any process. This worked to limit the many run-of-the-mill subpoenas for b-roll or accident footage but permitted subpoenas and, in certain circumstances, seizures of records from third-party providers in leak investigations. Following criticism when the first Trump administration used secret process to attempt to access phone and email records from several media entities, the Department of Justice under President Biden declared that the government “will not seek compulsory legal process in leak investigations to obtain source information from members of the news media doing their jobs” and promulgated new regulations in 2022. Those regulations broadly prohibited all such uses, except for when a journalist was under investigation in a matter not connected to newsgathering, when the journalist was an agent of a foreign power or a terrorist group, and when necessary to prevent imminent bodily harm. The regulations, which were codified at 28 C.F.R. § 50.10, were never enacted by Congress (nor was a federal shield law, like the PRESS Act), and so always remained subject to a change in policy from a new administration. That change has now arrived.

The “Updated Policy Regarding Obtaining Information From, Or Records Of, Members of the News Media” issued by the Attorney General opens with a statement that “[f]ederal government employees intentionally leaking sensitive information to the media undermines the ability of the Department of Justice to uphold the rule of law, protect civil rights, and keep America safe,” and that it is therefore “necessary to rescind” the previous policy precluding “seeking records and compelling testimony from members of the news media in order to identify and punish the source of improper leaks.” The Attorney General references leaks of both unclassified information and reporting in various media about classified internal intelligence that contradicted the President’s justifications for mass deportations. Indeed, citing President Trump’s April 9 memorandum directing the Department of Homeland Security to investigate a former governmental employee, the April 25 memo asserts that it is “treasonous” for a government employee to leak “sensitive” information—i.e., not only classified information—“for the purposes of personal enrichment and undermining our foreign policy, national security, and Government effectiveness.”

Similarly, the introductory discussion in the new regulations highlights the Department’s concern over leaks to cooperating media: “The Attorney General has determined that the constraints imposed by the 2022 amendments to 28 CFR 50.10 have unduly hindered the Department’s efforts to subpoena journalists who have coordinated with Federal employees to leak protected materials.” The DOJ therefore adopts “a modified version of the 2014 regulations, revised to better align with what had been longstanding Department practice.”

The Attorney General’s memo notes that “despite the lack of independence of certain members of the legacy news media,” the new regulations will continue to provide procedural protections to limit seeking information from the news media. And indeed, the new regulations provide that the use of law enforcement tools such as subpoenas, warrants, and particular court orders are “extraordinary measures, not standard investigative practices,” and that the Attorney General must authorize the use of legal process to members of the news media or the third parties that hold their information in most circumstances.

There are exceptions to the Attorney General authorization requirement if the news media expressly agree to provide the information in response to a subpoena, such as for requests for published and unpublished materials and recordings. Similarly, Attorney General authorization is not required if the member of the news media may be perpetrators, victims or witnesses to crimes or other events “unrelated to their lawful newsgathering activities.”

In determining whether to approve legal process to the news media, the regulations indicate that the Attorney General should consider:

• In a criminal matter, whether there are reasonable grounds to believe that a crime has occurred and the information sought is essential to a successful prosecution;
• In a civil matter, whether there are reasonable grounds to believe that the information sought is “essential” to the completion of the investigation or litigation in a case of substantial importance;
• Whether the government has made all reasonable attempts to obtain the information from alternative sources; and
• Whether the government has pursued negotiations with the news media, absent a threat to national security, the integrity of the investigation, or bodily harm.

The regulations provide that the legal process should be narrowly drawn, and that in general there should be reasonable and timely notice of the demand—which should provide the affected media entity with an opportunity to seek to quash the process—unless the Attorney General determines that “for compelling reasons,” notice would pose a “substantial threat to the integrity of an investigation, risk grave harm to national security, or present an imminent risk of death of serious bodily harm.” In such a case, the affected member of the news media must be informed within 45 days of the government’s receipt of any return, extendable by another 45 days.

The regulations similarly address search warrants, as well as subpoenas. Although they acknowledge that the Privacy Protection Act of 1980, 42 U.S.C. § 2000aa, may impact the use of warrants against the news media, specific language in the 2014 regulations concerning the “suspect exception” to the statute is not included in the new regulations, and its absence may prove telling. Those now-removed provisions indicated that the government could only apply for a warrant when the member of the news media was the focus of a criminal investigation for conduct not based on their newsgathering or if the sole purpose of the warrant was “to further the investigation of a person other than the member of the news media.”

Other changes from the 2014 regulations include that the statement of principles now expresses respect for “lawful newsgathering activities” where the earlier regulations discussed “ordinary newsgathering activities.”  In addition, the Director of National Intelligence previously had to certify to the Attorney General the significance of the harm after consultation with the relevant department heads prior to the approval of the use of legal process in leak investigations; now the DNI is removed from the process and the “relevant Department or agency head” must certify to the Attorney General “the significance of the harm raised by the unauthorized disclosure and that the information disclosed was properly classified.”

In summary, it appears that DOJ will not shy away from using compulsory process to investigate the sources of leaks of both classified and unclassified information to the media. Media entities will still be able to challenge such process in the courts—assuming that they are provided notice—and journalists will still be able to argue that the First Amendment should shield their sources when they are reporting in the public interest. However, there is little doubt that the new regulations pose new challenges for journalists seeking to protect their sources and newsgathering.

Attorneys in our Media and Entertainment Law Group are closely monitoring these developments are available for counsel.

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