Revising the Attorney General’s guidelines

A year after the Department of Justice began a dialogue with representatives of the news media, it issued a second set of revisions to its internal guidelines for media subpoenas.

While the Obama administration has been criticized for actions including targeting the phone records of journalists and labeling one journalist a co-conspirator in violations of the Espionage Act, the Department’s decision to work with the media to put better safeguards in place for the future has been a positive sign.

Media lawyers pointed to the revised subpoena guidelines as evidence of Attorney General Eric Holder’s willingness to establish a conversation with the media and foster more sensitivity to their concerns within the Department of Justice.

Kurt Wimmer, an attorney at Covington & Burling LLP and a member of the News Media Dialogue Group, which was formed in February 2014 and has been meeting regularly with Holder and other department representatives, called the revisions “a real step forward,” and said he hopes that this dialogue continues.

“The Department was quite open and productive in listening to our concerns and acted on those concerns, and that’s pretty extraordinary,” Wimmer said.

After the disclosures in May 2013 that the Justice Department had secretly seized Associated Press toll records and the emails of Fox News reporter James Rosen, the Justice Department initiated a review of its internal media subpoena guidelines. The ongoing James Risen subpoena battle intensified the pressure on the government to institute tighter controls on media subpoenas in the future. The guidelines have been around since 1970 and originally applied only to subpoenas served directly to journalists, but were amended in 1980 to include telephone records held by a third party service provider.

In the summer of 2013, Holder invited interested groups to propose changes to the guidelines. A set of revised guidelines were released in February 2014 and included much of what press advocates had sought, including provisions making it more difficult for DOJ to withhold notice to a journalist or media organization when it subpoenas a third party and forbidding the use of the Privacy Protection Act’s “suspect exception” — which allows the government to obtain a search warrant for material belonging to a journalist who is suspected of a crime — when the journalist is engaged in “ordinary newsgathering activities” and is not the target of the criminal probe. But “ordinary newsgathering” was not defined and was an entirely new term.

Members of the media felt that this term and several other aspects of the revised guidelines were unclear, incomplete, or even harmful to the interests they were meant to protect. At roughly the same time, prosecutors began meeting with the News Media Dialogue Group, whose creation the Department had first promised in the summer of 2013, and the group started to discuss with DOJ leadership the possibility of further revisions to the guidelines. Led in part by Reporters Committee executive director Bruce Brown, the dialogue group met with DOJ representatives throughout 2014, and in January 2015, new guidelines were released.

January 2015 guideline revisions

A sampling of the 2015 revisions to the media subpoena guidelines follows.

Members of the press were concerned that the qualifier “ordinary” in “ordinary newsgathering activities” could be used to withhold protection from journalists who were engaged in what the government could subjectively determine was newsgathering it disapproved of, such as receiving leaked information from government officials. That phrase appeared multiple times in the 2014 guidelines, even though it was not in the original regulations and had never come up during the discussion process.

The dialogue group expressed its concerns to DOJ that the vagueness of the term created a large exception where prosecutors and future attorneys general could decide that a wide range of activities that they would find unacceptable would be deemed “extra-ordinary.”

DOJ officials said they did not intend for the term to restrict the protections offered in the guidelines, but in the 2015 revisions, the word “ordinary” was removed so that the guidelines refer simply to “newsgathering activities.”

The 2014 revisions added sections stating that the Attorney General “may” authorize subpoenas when the Director of National Intelligence certifies that the investigation concerns the unauthorized disclosure of properly classified information. This language was ambiguous as to whether, when such a certification is made, the Attorney General could then ignore the rest of the guidelines’ prescriptions.

The 2015 revisions make clear that this is an additional step in leaks investigations and prosecutions. Both the sections on direct subpoenas and on third-party subpoenas indicate that in approving a subpoena in a leaks investigation, the Attorney General “should take into account” both the DNI certification and the specific restrictions in the guidelines.

Most references to records held by third parties that were protected under the 2014 guidelines referred to communications records and business records, both of which are defined in the regulations. But a few references, particularly with regard to records held by communications service providers and those subject to search warrants, referred only to communications records. Those sections were amended in 2015 to include business records, and the definition of business records was expanded to specifically include “work product and other documentary materials.”

The 2014 regulations stated that they did not cover journalists “who are the focus of criminal investigations for conduct not based on, or within the scope of” their newsgathering activities. The media coalition felt that “focus” was ambiguous and was inconsistent with the terms of art used elsewhere in DOJ rules and regulations. The 2015 regulations replaced “focus” with “subjects or targets.” A similar change was made in the section regarding when the Privacy Protection Act “suspect exception” is invoked.

A new section was added regarding third-party subpoenas to mirror language regarding direct subpoenas: “Requests should be treated with care to avoid interference with newsgathering activities and to avoid claims of harassment.”

A new section was added to require that even after any subpoena or other instrument is issued and negotiations with the media entity fail, prosecutors must consult with the Criminal Division before asking a judge to compel compliance with any direct or third-party subpoena or court order. The initiative for this new section came from DOJ and the media coalition endorsed it.

The 2014 regulations required that the news media be given notice of subpoenas to third parties before they are served, thus giving the media the opportunity to move to quash them. The 2015 revisions added similar language to the Statement of Principles.

In the section regarding requests for approval to question, arrest, or seek indictment of members of the news media, a new sub-section was added stating that the Attorney General must follow the Statement of Principles when considering such requests.

Reaction to the revisions

Much of what reporters can expect to come in the way of subpoenas in the future depends on the decisions of future attorneys general, but the tightened guidelines should operate to better protect media interests. It should be kept in mind that they are merely guidelines and not rules that can be enforced against DOJ. But with the great public scrutiny of subpoenas to the media, there is a measure of public accountability that will apply pressure on the government to follow them.

In addition, many subpoenas to reporters come from sources other than the Department of Justice, including state prosecutors, criminal defendants and civil litigants. The guidelines do not cover those subpoenas.

David McCraw, assistant general counsel of The New York Times, said that while the guidelines are not perfect, they are an important speed bump for federal prosecutors who will now have to think very hard about issuing subpoenas to reporters. A sobering example came from the Jeffrey Sterling case, in which DOJ pursued the testimony of journalist James Risen and got a victory in the Fourth Circuit denying the existence of a federal reporter’s privilege. In the end, the government convicted Sterling under the Espionage Act without Risen’s testimony. The revised guidelines will restrain federal prosecutors somewhat in those kinds of cases in the future, he said.

“In many ways the system has depended on the discretion of prosecutors to decide not to subpoena reporters,” McCraw said. “If the law is uncertain as I think it now is after Sterling, we need, in order to protect sources, government prosecutors who will not take up a press subpoena lightly, who will not force the press to reveal sources in cases when it doesn’t matter, when there is no need.”

Susan Page, a member of the dialogue group and the Washington bureau chief for USA Today, said she appreciated that DOJ was willing to at least discuss all of the group’s concerns and that their revisions addressed the most important points.

“Not that it’s a perfect world and that there won’t be confrontations down the line, but government agencies are not always willing to listen, to compromise, and to change what they’re doing,” Page said. “In this case the Administration was, and I think they deserve some credit for that.”

DOJ spokesperson Brian Fallon was not available for comment.

Wimmer remains positive about Holder’s engagement with the press and the example it sets for the department's future communications with the media, saying that Holder has “tried hard to do the right thing” by being open to concerns about issues such as the administration’s use of the press to investigate leakers.

“I hope that is something that continues with future A.G.s, who have the ability to meet with the media group and continue the process of having an open dialogue,” Wimmer said.