The New York Times reporter Adam Goldman might have been exaggerating a bit when he said Sunday that for more than a decade, the Justice Department has been treating reporters like members of drug gangs.
But then again, he speaks from direct experience. Time after time, the government has stomped on the First Amendment by chasing after reporters’ phone and email records, including Goldman’s, trying to hunt down their confidential sources.
Now, one startling revelation after another has made it clear that the offenses of the Obama and Trump administrations against reporters didn’t stop when President Joe Biden took office. Last week we learned that a government prosecutor had managed to get a gag order that prohibited the Times’ newsroom lawyer, David McCraw, from even informing the paper’s top editor that Justice was trying to get four of his reporters’ email logs. A federal court finally lifted the order Friday, but defenders of press rights were appalled that it got as far as it did.
“Sealed court papers are one thing, but secret court cases are nearly always a sign of abuse of power,” was how Richard Tofel, the outgoing president of ProPublica, put it.
Exactly right. Call this what it is: an outrage.
Over the weekend, President Joe Biden distanced himself from all of this, with a statement by press secretary Jen Psaki insisting that no one at the White House was aware of the gag order until days ago. Issuing subpoenas for the records of reporters in leak investigations “is not consistent with the President’s policy direction,” she said. A Justice spokesman backed this up, suggesting the department would no longer try to force journalists to reveal their sources in court.
Well, great. But it’s still not nearly enough.
There have been lots of good intentions about press rights expressed well before this.
Late in the Obama administration, for example, there were some extreme intrusions into press rights — including Justice’s invasive collection of Associated Press phone records, and the shocking decision to name Fox News reporter James Rosen a co-conspirator in an espionage case against a State Department security adviser. The FBI even tracked his movements to and from the State Department as he did his reporting about U.S. intelligence about North Korea.
So, in 2014, after consultations between the Justice Department, prominent journalists and press-rights organizations, then-Attorney General Eric Holder signed some policy guidelines intended to strike the right balance between protecting reporting and protecting national security and public safety.
The guidelines aimed to shield journalists from law enforcement tools, including subpoenas, court orders and search warrants that could impair newsgathering. There were exemptions of various kinds built in, and it required a certain amount of good-faith effort to make them work as intended.
It was a positive step. It also quite clearly failed to fix the problem.
“They don’t respect the media guidelines,” Goldman told me Monday. He put particular blame on the U.S. Attorney’s Office in Washington.
“We knew in 2013 they were going to drive a Mack truck through the national security exemption, and they have,” he said.
In an opinion piece published over the weekend, Washington Post publisher Fred Ryan argued that the revelations of recent weeks demonstrate that the Biden administration actually intensified the assault on First Amendment rights before backing down.
He described how, after The Post learned of subpoenas to obtain email information and home, cell and office telephone records of three Post reporters from 2017, the paper’s leadership demanded answers and a meeting with the attorney general — and have so far received none.
The government has also sought the records of CNN reporters in this matter, which appears to center on classified information about how James Comey Jr., the former FBI director, conducted investigations during the 2016 presidential campaign.
Given this history, it’s hard to be satisfied with Biden’s own words that such intrusions are “simply, simply wrong.” And it’s hard to take seriously any Justice Department promises of better behavior in the future. Those promises have already proven empty.
So what should happen now?
First, there should be an investigation into what led to these intrusions by the Justice Department’s inspector general; the results should be made public. “Serious unanswered question remain about what happened in each of these cases,” said Bruce Brown, executive director of the Reporters Committee for Freedom of the Press.
Second, the Department of Justice’s policies need to be reviewed and strengthened. To put it bluntly: They need to have some teeth. Firm rules, not just guidelines. And there should be penalties — suspensions, demotions, even jobs lost — for those prosecutors who abuse them.
There’s every reason to hope that the well-respected Merrick Garland, who has been attorney general for only a few months, will be a far better steward of press rights than his Trump-era predecessors — particularly William Barr, who shamefully acted like the president’s personal attorney rather than the chief law enforcement official in the land.
But, as we’ve found out in recent weeks, hope isn’t nearly enough.
Margaret Sullivan is The Washington Post’s media columnist.