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.
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:
- Pushing conspiracies, part I: In the final weeks of President Trump’s time in office, Chief of Staff Mark Meadows pushed the Justice Department to investigate unfounded claims of election fraud, including a conspiracy theory (nicknamed “Italygate”) suggesting that people in Italy had used satellites to hack voting machines, the New York Times reported over the weekend. Emails provided to Congress demonstrate how Meadows “sought official validation for misinformation that was circulating rampantly among Mr. Trump’s supporters,” Katie Benner writes.
- Pushing conspiracies, part II: Matt Masterson, a former Department of Homeland Security official, told NPR that Arizona’s “audit” of ballots was a “blueprint for misinformation,” demonstrating the patterns that make misinformation powerful and effective, which he warns can—and will—be reproduced again and again.
- Facebook bans Trump: Facebook announced on Friday that it would ban former President Trump from using its platform until January 2023, at which point the company will reevaluate its ruling. The decision alters Facebook’s approach to treating political figures differently from other users, creating more specific guidelines that give political speech less weight and offering more accountability.
Other notable stories:
- After BuzzFeed and the Washington Post used FOIA requests to obtain thousands of pages of emails sent to and received by disease expert Anthony Fauci in the early days of the pandemic (and creating some confusion among readers about whether or not the emails had been “leaked”), the Washington Post reported how Fox News personality Tucker Carlson used the email dump to cherry-pick moments suggesting Fauci was purposefully misleading the American public. “Carlson’s claims went miles past the evidence, a problem that seems to have given him little pause,” Philip Bump writes.
- The NewsGuild of New York, a growing union representing some of the largest and most influential newsrooms in the country, including Reuters, BuzzFeed, and The New York Times, recently announced an election proposing to raise member dues to cover financial losses and avert cutbacks. More than one hundred Times reporters—including some big names and Pulitzer prize-winners—signed a letter opposing the dues hike. “The battle pits Times reporters and editors skeptical of the NewsGuild’s spending against other Guild members frustrated by the unwillingness of largely well-paid journalists to sacrifice a small amount for their colleagues in the industry,” Maxwell Tani and Lachlan Cartwright wrote for The Daily Beast.
- For the Washington Post, Elahe Izadi investigated journalistic blogs that self-style as watchdog outlets while accepting money and editorial guidance from PR firms. While financial conflicts of interest are always possible in journalism—money always comes from somewhere, and legacy for-profit media companies are not beyond reproach—news startups and watchdog blogs aren’t always transparent about their adherence to journalistic standards regarding independence or conflicts of interest in reporting. “Consumers usually aren’t always savvy enough to discern the difference between these sites and a traditional news organization,” PolitiFact founder Bill Adair told Izadi. Some sites are taking advantage of that inconsistency.
- Yesterday, the New York Daily News union tweeted the news that Alden Global Capital—which recently acquired the Daily News’ parent company, Tribune Publishing—had canceled the paper’s summer intern program, even after four journalists had accepted internship offers. (NPR media correspondent David Folkenflik tweeted a screenshot of his Twitter timeline that juxtaposed a HuffPost reporter celebrating the summer internship that launched her career a decade ago against the grim tweet from the Daily News union).
- On Friday, Twitter announced the rollout of its premium service, Twitter Blue, which will cost $3 a month USD and roll out first in Canada and Australia. Its features are “pretty underwhelming,” Joshua Benton wrote for NiemanLab. Users will be able to edit tweets within the first thirty seconds of posting, view threads in a “reader mode,” and sort bookmarks, among other features. Twitter Blue’s product managers said in a statement that Twitter Blue is not intended to signal a shift away from the free platform; Twitter Blue will also continue to show promoted tweets.
- The Biden press room will return to full seating capacity this week, Politico reported, marking a return to pre-pandemic norms, including seating charts. Fully vaccinated journalists will no longer be required to test for COVID, unless participating in a press pool, though journalists who have not received the vaccine will continue to be tested daily. In a Saturday interview with Press Secretary Jen Psaki, Brian Stelter noted that President Biden has only held a single formal press conference since taking office in January.
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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.