DOJ POLICY PROVIDES PRESS PROTECTION
Our country is extraordinary in that we have a First Amendment. We may take that for granted, but there are plenty of countries that do not. And I think it is the existence of the First Amendment that drives our country’s understanding that the press has a vital job to do in a functioning democracy. I encounter plenty of people who bemoan the state of “fake news” but those folks still watch and appreciate some limited form of news. They don’t think all news reporting is bad, just the stuff they disagree with.
And that commitment to a free press is front and center in the Department of Justice’s “Policy regarding obtaining information from, or records of, members of the news media; and regarding questioning, arresting, or charging members of the news media.” The Policy, adopted on October 26, offers protections to the press that I suspect are unlike most every other country in the world.
The very first sentence of the Policy sets the tone: “Because freedom of the press can be no broader than the freedom of members of the news media to investigate and report the news, the Department’s policy is intended to provide protection to members of the news media from certain law enforcement tools, whether criminal or civil, that might unreasonably impair newsgathering activities.” Hard to imagine a stronger statement of support for a free press.
The Policy has a lot of pieces to it, but the gist is that the DOJ can’t subpoena the press or issue warrants as a routine part of criminal investigations. Except in very limited circumstances, the DOJ can’t issue a subpoena or a warrant to a member of the media without the approval of the Attorney General. And the request submitted to the AG must be personally endorsed by the United States Attorney or Assistant Attorney General responsible for the matter. In other words, it’s a big deal.
The Policy also provides that a subpoena should not issue unless there are reasonable grounds to believe a crime has been committed and that the information sought is essential to a successful prosecution or investigation. In a civil matter, the information must also be essential. The DOJ is not permitted to use its subpoena power to obtain “peripheral, nonessential, or speculative information.” And in both criminal and civil matters, the DOJ needs to first use all reasonable attempts to obtain the information from alternative, non-media sources.
The Policy also addresses the use of subpoenas to third parties, such as phone providers, where the intent is to uncover sources of information. That type of subpoena too requires sign off by the AG. The same principles apply to this type of subpoena, and the Policy makes it clear that it should not be used unless the DOJ has exhausted all other sources.
Some may be concerned that the Policy ties the hands of law enforcement. It doesn’t. There are enough caveats and carve outs to ensure that the law can be enforced. The Policy just ensures that the DOJ will not trample on the rights of the Press in its pursuit of law and order. Seems pretty reasonable to me.