DOJ inspector general releases report on 2020-21 journalist records seizures

If you like this post, sign up to get The Nuance newsletter delivered straight to your inbox on the third Sunday of every month!

Last month, the U.S. Justice Department’s inspector general released a long-awaited report on DOJ legal demands during the first Trump administration for communications records from members of Congress, their staff, and eight reporters at three news outlets — CNN, The New York Times, and The Washington Post — in national security “leak” investigations.

For anyone interested in the nitty-gritty detail of how these investigations work in practice, the report is a key resource. There isn’t much more in the report that we didn’t know at the time the news broke in 2021. But the report confirms that the department failed to comply, in part, with an internal policy — the “news media guidelines” — that limit when and how DOJ attorneys can use subpoenas and other legal tools to demand records from or of journalists.

Specifically, there were three compliance failures. At first glance, these failures might seem wonky and insignificant, but they matter. Every element of the news media guidelines is there to prevent precisely these kinds of controversies, which, in addition to being an intrusion on sensitive newsgathering, can be hugely distracting from the Justice Department’s mission. That’s precisely why none other than Attorney General John Mitchell first implemented the guidelines during the Nixon administration.

Before getting into the details, however, recall that these occurred under a previous version of the guidelines. In 2022, the department comprehensively revised the policy to bar the use of subpoenas and other compulsory legal process against journalists acting within the scope of newsgathering, with only limited exceptions. 

Under the previous version of the guidelines, finalized in 2014 and 2015 by Attorney General Eric Holder, the attorney general could authorize legal process under a balancing test, with certain checks to prevent overreach, such as a presumption that an affected news organization or journalist would be notified before the department sought to enforce the demand.

The first compliance failure is a bit obscure. In 2013, in a report from the DOJ explaining the proposed changes to the regulation, the department outlined a standing committee, similar to committees covering capital cases and state secrets, to advise the attorney general and deputy attorney general when department attorneys seek media-related records. 

That News Media Review Committee was to ensure that senior department officials “with relevant expertise and experience, and who are neither directly involved nor play a supervisory role in the investigations involved, are engaged in the consideration of the use of investigative tools that involve members of the news media.”

According to the DOJ’s IG report, the Criminal Division failed to forward the requests for process in the CNN, New York Times, and Washington Post cases to the review committee. The deputy assistant attorney general for the Criminal Division reportedly told IG investigators that “she believes no one in the Criminal Division considered the referral of the Criminal Division’s recommendations to the committee and acknowledged that they should have considered it.” Indeed, it is not clear whether the committee existed at the time prosecutors sought authorization.

The second compliance failure involves a requirement in the 2014-15 guidelines specific to national security leak cases. There, the director of national intelligence, in consultation with the Intelligence Community agency that reported the leak, must certify to the attorney general the significance of the harm caused by the unauthorized disclosure and the Intelligence Community’s continued support for the investigation or prosecution. (There are multiple reasons for this, including the fact that IC agencies may not want to run the risk that classified information could be disclosed at trial, or that the information was not properly classified.)

Here, the IG reported full compliance with the DNI certification requirement in only one of the three investigations. In the CNN case, the DNI certification was obtained, included in the classified memorandum seeking attorney general approval, and noted in a footnote in that memorandum. In the New York Times case, however, the National Security Division obtained the DNI certification but the IG was unable to confirm that it was provided to Attorney General William Barr before he approved the subpoenas and court orders. 

And in “Washington Post 2” — there were two Washington Post investigations — the NSD sought the DNI certification but did not receive it. Notably, a supervisor at that division told the IG that it had not received the certification before submitting the memorandum seeking attorney general approval, but that the memorandum said that prosecutors would have the certification “in hand” before submission.

The third compliance failure is particularly significant. When using court orders to demand records from third-party electronic communications providers, prosecutors often apply for a separate “non-disclosure order” that prevents the provider from telling the subscriber. 

In two of these cases — CNN and The New York Times — the use of these NDOs ultimately resulted in newsroom lawyers learning of the records demands but being barred from telling the newsroom. In the CNN case, the general counsel learned of the court order for the reporter’s office email records because CNN’s parent company had in-house servers. In the Times case, the paper’s email provider negotiated with the DOJ to permit disclosure first to the newsroom lawyer, then to senior business executives, but all were gagged from informing the affected journalists.

At the time, the Justice Manual, a guidebook for prosecutors, expressly required that applications for media-related court orders for email records notify the attorney general that an NDO would be sought, articulate the need for one, and obtain the attorney general’s authorization to seek an NDO. The IG found that the department failed to comply in each case. 

In CNN, the recommendation memorandum included a proposed NDO as an attachment but failed to “directly and clearly” inform the attorney general that an NDO would be sought. In the Times case, the memorandum did not state that an NDO would be sought and did not include it as an attachment. And, in Washington Post 2, the memorandum said that an NDO would be sought only if the Post ran its own email servers, but department attorneys nonetheless sought and obtained an NDO for an entity the department believed was the Post’s email provider.

All of that may seem pretty in the weeds, but it’s not great. Each of those requirements serves an important role in preventing improper inquiries into sensitive newsgathering, including reporting on the department itself. 

The News Media Review Committee is meant to provide a disinterested but expert review of each request. The DNI certification is key to ensuring that only the most serious leaks are pursued. And NDOs are highly controversial. In essence, unless a law or regulation requires that the subscriber be notified, or the information is used in a criminal prosecution, the use of an NDO can theoretically mean a subscriber never finds out that their data has been seized.

The IG’s ultimate conclusion reflects that sensitivity, and is worth quoting in full:

Given the important interests at stake, we were troubled that these failures occurred, particularly given that only a few years had elapsed since the Department substantially overhauled its News Media Policy in 2014 and 2015 following serious criticisms concerning the Department’s efforts to obtain communications records of members of the news media. In our judgment, the Department’s deviation from its own requirements indicates a troubling disparity between, on the one hand, the regard expressed in Department policy for the role of the news media in American democracy and, on the other hand, the Department’s commitment to complying with the limits and requirements that it intended to safeguard that role.

As we enter the second Trump administration, many, including us, have flagged national security leak cases as a possible area of controversy. The IG’s report is a helpful record of why the news media guidelines matter.