Joe Biden’s mixed signals on press freedom

On Friday, the New York Times revealed that when the Biden Justice Department disclosed ongoing attempts to seize email records from four Times reporters to executives at the paper in March, they also imposed a gag order, preventing those executives from sharing the information, even with their colleagues at the Times. On Friday, a federal court lifted the order; on Saturday, the Biden White House denied having any knowledge of the matter until Friday night. Then, the Justice Department announced on Saturday that it will discontinue the practice of seizing reporters’ records during leak investigations. The procedural reversal follows recent reports that the Justice Department had obtained records from reporters at CNN, The Washington Post, and The New York Times during the Trump administration, leading to an outcry from media advocates. Though Saturday’s news is welcome, the Biden administration’s full-fledged commitment to government transparency is far from certain.

The Justice Department’s practice of obtaining reporters’ phone or email records in service of investigations has a long, sordid history in American politics. Richard Nixon—famously adversarial toward the press—wiretapped reporters’ phones. In 2005, the Bush administration put together a task force to track down sources for James Risen and Eric Lichtblau’s explosive Times article about warrantless NSA surveillance of American citizens. In 2013, the Justice Department under then-President Obama revealed that it had secretly obtained phone records from the Associated Press covering two months of more than twenty separate phone lines listing outgoing calls for both individual reporters and AP bureaus. Just a few days after the news broke about the AP incident, The Washington Post reported that the Obama Justice Department had tracked Fox News correspondent James Rosen’s movements within the State Department and obtained a search warrant for his personal emails during an investigation into a possible leak of classified information in 2009.

Still, the Trump administration saw a marked increase in leak investigations; in 2017, then-Attorney General Jeff Sessions boasted that his Justice Department was conducting twenty-seven investigations into classified leaks, referring to the frequency of leaked information as an “epidemic.” The Intercept reported in March of this year that the Trump administration referred a record number of classified leaks for criminal investigation. The number of referrals surpassed three hundred. (For his part, James Risen wrote in the early days of the Trump presidency, “If Donald Trump Targets Journalists, Thank Obama,” noting that the Obama administration prosecuted nine cases involving leaks or whistle-blowers and used the Espionage Act to go after leakers.) In 2018, the prosecution of a Trump aide who leaked information to the press revealed that the Justice Department had secretly seized years of email and phone records from Times reporter Ali Watkins. Last month, the DOJ told The Washington Post that it had obtained phone and email records from three of its reporters in 2017. Soon after, CNN learned that the Trump administration had obtained two months of email and phone records from their Pentagon reporter that same year; then the Times broke the news that the DOJ had seized phone records for four of their reporters.

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The Biden administration seems more amenable to the rights of a free press, at least in terms of its public message. Responding to recent weeks’ reporting on the Trump administration’s actions, President Biden called the seizure of journalists’ records “simply wrong,” in a May briefing vowing that his Justice Department would cease the practice; Saturday’s announcement would seem to uphold this promise. Press Secretary Jen Psaki said in a statement on Saturday that “the issuing of subpoenas for the records of reporters in leak investigations is not consistent with the President’s policy direction to the Department.” The Justice Department’s statement also seemed to suggest that it would not compel reporters to reveal the identity of whistleblowing sources in court. (Times reporting suggested that some veteran national security officials are uncomfortable with the new mandate). Attorney General Merrick Garland has a somewhat encouraging record on press freedom rulings; in 2005, while serving on the US Court of Appeals, he dissented in a case holding Times reporters in contempt of court for refusing to identify their anonymous sources, saying that the decision “undermined the Founders’ intention to protect the press ‘so that it could bare the secrets of government and inform the people.” Rendering legal judgments and making operational decisions, however, are two different things. And it can’t be ignored that the current Justice Department carried on an unsuccessful attempt to obtain Times email logs from Google and also attempted to shield the effort from the public (Google, for its part, successfully resisted). As for the White House, Psaki cited the independence of the DOJ in presiding over criminal cases and maintained that the White House was unaware of any such order.

Fred Ryan, the publisher of The Washington Post, called the Justice Department’s gag order an “unprecedented assault on American news organizations,” noting that the Post still has not received further communication after recently requesting an explanation about the seizure of records from three of their reporters in 2017. “The inconsistency between presidential words and Justice Department deeds dictates the need for full accountability and transparency,” Ryan wrote.

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The Biden administration’s reversal of the seizure policy signals a philosophical shift, prioritizing press freedom over government secrecy; a true reversal, however, will require them to keep their word.

Below, more on press, presidents, and precedent:

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Lauren Harris is a freelance journalist. She writes CJR's weekly newsletter for the Journalism Crisis Project. Follow her on Twitter @LHarrisWrites