WASHINGTON – Attorney General Merrick Garland on Monday said he would tighten the Justice Department’s policies on obtaining records from lawmakers and reporters, as he sought to address a growing controversy over department efforts during the Trump administration to secure the data of members of Congress, journalists and even the White House counsel.
In the morning, Garland issued a statement announcing he had directed Deputy Attorney General Lisa Monaco to “evaluate and strengthen the department’s existing policies and procedures for obtaining records of the Legislative branch,” and he noted that she was “already working on surfacing potentially problematic matters deserving high-level review.”
Then, in the afternoon, Garland and other Justice Department officials met with executives from The Washington Post, CNN and the New York Times and agreed that the department needed “strong, durable rules” implementing President Joe Biden’s recent directive that reporters’ phone and email records not be seized in an effort to identify their sources, according to a Justice Department readout.
In recent weeks, the department has notified current and former Post, CNN and Times reporters that their phone and – in CNN’s case – email records had been secretly seized as part of moves that began under the Trump administration.
The seizures, which came during efforts to investigate leaks of classified information, sparked outcry from First Amendment advocates and media executives. Biden and Garland soon said they would stop going after reporters’ records in such cases.
Garland had previously said he was working on a written policy to codify Biden’s directive, and the Justice Department readout of his meeting with news executives suggested he would work with the media to make that into a formal regulation. The readout also said department officials “made clear that reporters were never the subject or the target of the recent investigations.”
“In the coming weeks the Attorney General will develop and distribute to the field a memo detailing the current policy,” the department said in a statement. “The Attorney General committed to working with members of the news media to codify the memo setting out these new rules into regulation.”
Washington Post Publisher Fred Ryan said in a statement: “It was encouraging to hear the Attorney General’s commitment to the first amendment rights of all Americans. While we welcome the new policy to refrain from using compulsory legal procedures to seize reporter records in leak investigations, we feel steps must be taken to ensure it is durable and binding on future administrations. It is also essential that there be a full and complete public accounting of all the actions taken against our news organizations, including the secret subpoenas and gag orders, and an explanation as to what has been done with the information that was seized.”
In addition to Garland, the meeting was attended by Monaco and several other Justice Department officials. The Post was represented by Ryan, Executive Editor Sally Buzbee and general counsel Jay Kennedy. CNN was represented by Washington bureau chief Sam Feist and general counsel David Vigilante. The Times was represented by Publisher A.G. Sulzberger and deputy general counsel David McCraw.
The news executives from all three organizations stood before television cameras outside the department after the meeting, but none spoke about it, deferring instead to Bruce Brown, executive director of the Reporters Committee for Freedom of the Press. Brown said the meeting was considered “off the record,” meaning those who participated agreed not to divulge its contents publicly.
Brown said the group came hoping to communicate “that it was essential to us that they understood the importance of public accountability on what exactly transpired in the three cases,” and that the group also hoped to stress that any new policy must be “durable.”
“We are very encouraged by what we heard inside the meeting,” Brown said.
Asked why they agreed to meet off the record, the news executives said nothing. Brown said similar meetings occurred during the Obama administration.
“We wanted to have a conversation inside the building where all sides could fully and freely share views,” Brown said.
Sulzberger, the Times publisher, said in a statement later: “In today’s meeting, we sought a full accounting of what happened and requested that the Department of Justice codify that it will no longer seize journalists’ records during leak investigations. We were encouraged by Attorney General Garland’s statements but we will continue to push until our concerns are addressed.”
Last week, it was revealed that the department had also, in February 2018, subpoenaed Apple for the data of two lawmakers on the House Intelligence Committee – California Democrats Adam Schiff and Eric Swalwell – as well as current and former staffers on the panel and family members.
Swalwell and Schiff were frequent critics of President Donald Trump during his administration’s early years, when Democrats were in the minority and Republicans were running the House Intelligence Committee’s investigation of Russian interference in the 2016 election. Democrats decried the Trump Justice Department’s seizure of their records as possibly politically motivated. Those seizures, too, seemed to come during a leak investigation.
On Monday, the head of the Justice Department’s national security division – which managed the leak cases – disclosed that he was stepping down from his post by June 25, though the departure had been in the works for some time, a Justice Department official said.
The division head, Assistant Attorney General John Demers, was a Trump appointee who had been held over into the Biden administration. Biden had announced late last month his intention to nominate veteran national security official Matt Olsen to take over the job, although Olsen still needs Senate confirmation. Senate Majority Leader Chuck Schumer, D-N.Y., on Sunday had called on Senate Republicans to join Democrats to issue a subpoena for Demers, as well as other Trump-era Justice Department leaders, demanding their testimony under oath.
On Thursday, House Judiciary Committee Chairman Jerry Nadler, D-N.Y., announced that his committee would open a formal investigation into the Justice Department’s seeking records of lawmakers, journalists and others.
The Justice Department official, speaking on the condition of anonymity to discuss a personnel matter, said Demers had been discussing departure dates since as far back as May 9. That was two days after The Post reported that current and former Post reporters had been notified that their records were taken, although the official noted that Biden administration officials had in April asked Demers to extend his service.
“It’s been well known within the department that his intention was always to leave before the end of June,” the official said.
Demers will be replaced in the short term by Mark Lesko, the acting U.S. attorney for the Eastern District of New York.
Over the weekend, it was revealed that Apple had last month notified another prominent political figure that his records were sought by the Justice Department in February 2018: former White House counsel Donald McGahn.
The reason for that seizure remains unclear. The department has declined to answer specific questions about all of the moves.
The department’s inspector general, Michael Horowitz, recently announced that he would examine how officials had sought the data of reporters, lawmakers and others. But Horowitz cannot compel former Justice Department officials to talk to him, and his review could take months or even years.
Former attorney general Jeff Sessions and former deputy attorney general Rod Rosenstein, who were running the department in February 2018, as well as Attorney General William Barr, who took over later, have told associates that they did not recall being aware of the subpoenas for lawmaker records in a leak case.
When investigators obtain a person’s phone or email records – whom they contacted and who contacted them – one of the things they must do is identify who owns all the accounts on a lengthy list. That leads them to subpoena communications firms for data associated with the accounts – such as names and credit card information – to learn who controls them. They also sometimes seek to learn whom those people called.
It is possible that McGahn’s and the lawmakers’ data could have been swept up as prosecutors probed someone else they might have been in contact with. Addressing the congressional matter, Apple has said the Justice Department’s request sought customer or subscriber account information for 73 phone numbers and 36 email addresses. Microsoft has acknowledged that it, too, received a subpoena related to a personal email account of a congressional staffer.
Garland’s statement did not say how policies would change, but it noted, “Consistent with our commitment to the rule of law, we must ensure that full weight is accorded to separation-of-powers concerns moving forward.”
“As I stated during my confirmation hearing, political or other improper considerations must play no role in any investigative or prosecutorial decisions,” Garland said in the statement. “These principles that have long been held as sacrosanct by the DOJ career workforce will be vigorously guarded on my watch, and any failure to live up to them will be met with strict accountability. There are important questions that must be resolved in connection with an effort by the department to obtain records related to Members of Congress and Congressional staff.”