The Department of Justice’s use of compulsory process to obtain information from journalists in criminal investigations has been much in the news after an outcry following revelations that the Trump Justice Department had secretly seized reporters’ telephone records in search of their sources during a 2017 leak investigation. Those disclosures, along with contemporaneous reports that the Justice Department also had subpoenaed information from Apple accounts maintained by Democratic lawmakers and staff in connection with a separate leak investigation, prompted Attorney General Merrick Garland to meet with senior executives from CNN, The New York Times and the Washington Post on June 14, 2021. Following that meeting, the publisher of the Times, A.G. Sulzberger, issued a statement calling for the Justice Department to “codify that it will no longer seize journalists’ records during leak investigations.” While Garland’s own comments were considered off the record under an agreement setting the parameters of the June 14th meeting, the Times’ newsroom lawyer, David McCraw, portrayed the discussion, centering on restricting the ability of leak investigators to pursue reporters’ data, as positive.

With all this as a prelude generating considerable pressure on the Attorney General to act, the Justice Department released a memorandum, dated July 19, 2021, directed to all levels of the federal prosecutorial chain and signed by Garland, clarifying departmental policy on the “Use of Compulsory Process to Obtain Information From, or Records of, Members of the News Media.”

Notably, the intense interest in the formulation of Justice Department policy regarding the seizure of journalists’ records or the compelled disclosure of their sources reflects the absence of a federal “shield law” affording such protection. While disappointing to many in the Fourth Estate, the First Amendment has never been judicially interpreted to afford constitutional protection against the compelled disclosure of records or the identity of sources and, though numerous states have enacted shield laws providing absolute or qualified protection to reporters’ notes or confidential sources, efforts by journalists and their supporters to secure similar protections at the federal level have never secured the requisite congressional approval. Consequently, the Justice Department standards in using compulsory process to acquire reporters’ records have historically been compiled as departmental policy and codified in the Code of Federal Regulations.

In terms of the existing Department policies that govern the use of compulsory process to obtain information from, or records of, members of the news media, Garland’s memorandum  offers little that is substantively different from the rules currently codified in the Code of Federal Regulations at 28 C.F.R. § 50.10 — with one striking and very large exception

Titled, “Policy regarding obtaining information from, or records of, members of the news media; and regarding questioning, arresting, or charging members of the news media,” these Justice Department rules have been in place for decades and they begin with a “Statement of principles” requiring that prosecutors considering compulsory process with respect to journalists and their records always “strike the proper balance among several vital interests: Protecting national security, ensuring public safety, promoting effective law enforcement and the fair administration of justice, and safeguarding the essential role of the free press in fostering government accountability and an open society.”

The Attorney General’s new policy, however, concludes that this longstanding balancing test “may fail to properly weigh the important national interest in protecting journalists from compelled disclosure of information revealing their sources” and effectively jettisons the balancing test in favor of a broad “Prohibition on the Use of Compulsory Process” that permits very few exceptions.

Wittingly or not, these new Justice Department policies practically vitiate the ability to enforce 18 U.S.C. § 798, an espionage statute passed by Congress specifically to protect, inter alia, the “communications intelligence activities” of the United States. As Harold Edgar and Benno Schmidt observe in their seminal work, “The Espionage Statutes and Publication of Defense Information,” § 798 is, at least when compared to other espionage statutes, a “model of precise draftsmanship” that (1) makes evident that violation occurs upon knowing engagement in the proscribed conduct, and (2) through its use of the term “publishes” is intended to bar public speech regarding a specific category of classified information that is both “vital and vulnerable to an almost unique degree.” It bears note that, when considered by Congress in 1950, this most recent of the nation’s espionage laws and the only one to specifically criminalize the act of publishing was endorsed by the American Society of Newspaper Editors which, at that time, included as active members leading editors of the New York Times.

Despite this history, the government has never employed § 798 to prosecute a media entity for publishing “information concerning the communication intelligence activities of the Unites States,” and there is nothing to suggest that posture is likely to change. Logic suggests that, if the New York Times’s publication revealing the Stellar Wind program in 2005 and the Washington Post’s publication of the unauthorized Snowden disclosures in 2013 prompted no prosecutorial response from the Justice Department, it is difficult to conjure an act of publishing that ever will. And, while critics may argue that such a prosecution aimed directly at the act of publication would expose § 798 as constitutionally vulnerable, it bears remembering that two former Supreme Court justices, Byron White and Potter Stewart, are on record in the Pentagon Papers case, as acknowledging that they would have “no difficulty in sustaining convictions under” §798 where a newspaper knowingly published classified communications intelligence information.

Speaking practically, then, the problems with the Attorney General’s announced approach to the issuance of compulsory process to the media are unlikely to arise in a constitutionally fraught prosecution against a newspaper for the act of publication. Instead, as demonstrated by the controversies giving rise to the Attorney General’s recent focus on this topic, the principal impact of the newly announced Justice Department policy is likely to be found in investigations where the publication of classified information is clearly the product of an unauthorized disclosure by someone with access; i.e., a leak. It is no secret that the use of compulsory process to obtain information and records from members of the media is a most efficient tool in criminal investigations pursuing those engaged in the unlawful disclosure of government information, especially classified national security information. In practice, the essence of the vast majority of leak investigations is the pursuit of unknown perpetrators whose unauthorized disclosures come to light only when published by the media thereby making it readily apparent to investigators that the journalist likely knows the identity of the leaker or has relevant information that will facilitate making that identification.

The Garland memorandum takes direct aim at eliminating the use of compulsory process in this type of leak investigation by augmenting the general “prohibition on the use of compulsory process” with specific language establishing the following new Justice Department policies: (1) that a member of the news media cannot be considered the target or subject of any investigation where that status would be based on actions considered to be within “the scope of newsgathering activities;” and (2) compulsory process may not be used to obtain information from or records of a member of the news media who has, “in the course of newsgathering, only possessed or published government information, including classified information.” These provisions not only effectively neutralize the enforcement of § 798 in those cases where publishing is, in fact, the essence of the criminal offense but, more significantly as a practical matter, they eliminate the use of compulsory process as an investigative tool in investigations where, although neither the reporter nor the publisher is a target, both are likely to have relevant information as to the identity of the individual who unlawfully “furnished, transmitted, or otherwise made available to an unauthorized person … information concerning the communication intelligence activities of the United States” in violation of 18 U.S.C. § 798. In such circumstances, the Garland memorandum precludes the use of compulsory process because the reporter almost always will have become aware of the identity of the leaker while engaged in “newsgathering activities” and will generally have no involvement beyond possessing and subsequently publishing the classified information.

The perverse result of the Attorney General’s new policy is that the Justice Department can potentially indict a media organization for publishing classified information concerning U.S. communications intelligence activities but cannot issue a subpoena to the member of that media organization who first came into possession of that classified information if acquiring such possession was part of “newsgathering activities.” And, while journalism advocates may argue that a balancing of equities supports restricting the issuance of subpoenas to reporters and their publications because there is no judicial review prior to service of a subpoena, Garland’s prohibition on compulsory process includes not only subpoenas but “warrants [and] court orders issued pursuant to 18 U.S.C. §2703(d) and §3123.” So much, then, for using such a search warrant based on probable cause to obtain a reporter’s telephone or email communications.

None of this is meant to suggest that Garland’s memorandum will interfere with any ongoing prosecutions or even a current investigation of any leak – especially given the Justice Department’s legendary inertia in employing § 798 to combat unauthorized disclosures of classified communications intelligence information as confirmed by its failure to ever employ the statute in any context other than a quintessential espionage prosecution. Yet, it seems one thing to squander the utility of a congressional statute through prosecutorial timidity, it is quite another to nullify it through deliberate executive action, especially when administration after administration, Republican and Democratic, has railed about the “leak problem.”

Journalists and their advocates have long insisted that the optimal public policy answer to this “leak” problem lies in the government’s policing its own workers, identifying those with access to the compromised information, and utilizing investigative approaches that avoid encroaching upon protected newsgathering activities which, in their view, should lie beyond the reach of compulsory process. In practice, of course, this argument creates shield-like protection for journalists even though there is no federal shield law, and runs counter to the basic principle that the public has a right to every man’s evidence. It also elides the complicated deconstruction often required to investigate a leak effectively. The publication of classified communications intelligence information is not necessarily immediately apparent in a publication. Rarely do newspaper articles begin with “NSA says …” or “Communications intelligence has revealed ….” Instead, published articles frequently contain information, classified and unclassified, drawn from a variety of sources. Only some of that information published may be derived from communications intelligence and, while the reporter may be unable to distinguish among those sources, foreign adversaries can do so, and from that analysis gain insights into which of their communications facilities may be vulnerable to U.S. intelligence efforts. In such circumstances, the reporter and the publisher may well lack the knowledge, the mens rea so to speak, required to sustain a prosecution under §798, but the source who provided the information, a leaker with access, may be fully cognizant that the information she provided to the reporter included classified information “obtained by the processes of communication intelligence.” In transmitting this information to the reporter, that leaker has violated § 798, but the Garland memo forecloses the government’s use of compulsory process to obtain the identity of the leaker from the reporter. In important instances, this unilateral relinquishment of the compulsory process can virtually eliminate any realistic opportunity to identify the leaker and, more generally, to establish a credible deterrent for those who might be inclined to leak in the future.

As a result, when Justice Department officials are ever called upon to testify about yet another effort to pass a federal shield law, an undertaking to which the Garland memorandum also lends its support, perhaps Congress might inquire as to why this administration has chosen to neutralize such a valuable investigative tool – with such a categorical prohibition. Or indeed in future hearings with the Justice Department and FBI more broadly, Congress might inquire why this administration has tied investigators’ hands in a domain of activity that Congress specifically criminalized in an effort to protect intelligence assets considered both vital to the national security and uniquely vulnerable. Even better, the Justice Department, as it moves forward to codify these new policies at the Attorney General’s direction, would do well to reconsider the effect of those policies on § 798 and ensure that any immunity effectively accorded members of the media from compulsory process does not extend to activities that would be susceptible to prosecution under 18 U.S.C. § 798 whether by the reporter, the publisher, or those who leak classified communications intelligence information.