The Biden administration has sought to distance himself from Donald Trump’s treatment of the media – which the 45th President likes to rail against as an “enemy of the people.”
And in late October, Attorney General Merrick Garland formally announced that the Justice Department would no longer investigate members of the media for their reporting — including possession of classified information. In his remarks, Garland hailed an independent press as “vital to the functioning of our democracy.”
On the surface, this new policy — originally released in July 2021 — marks a sea change from Trump-era chilling tactics To show a ceasefire in the government’s hostilities against journalistic activities.
But the same report also notes a significant number of federal investigations into reporters for other crimes — including financial crime, stalking and child exploitation, according to records verified by Rolling Stone. In each individual case, according to the Justice Department, “the alleged criminal conduct was totally outside the scope” of the journalist’s “news-gathering activities.”
These conflicting facts leave skeptics worried: Could a recent criminal investigation into journalists obscure revenge for unwanted reporting?
The new Justice Department order, which goes into effect Nov. 3, directs federal law enforcement agencies to stop issuing warrants and subpoenas against media representatives involved in intelligence gathering, including leaked classified information. In introducing the policy, Garland insisted that reporters “must have the freedom to investigate and report news.” Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, helped draft the new regulation and heralded it as a “watershed moment” in “protecting the rights of news organizations.”
Officially, the Biden administration rejects the Trump regime’s heavy-handed approach, which has sought to stem government leaks of classified information by making intrusive legal demands for reporters’ emails, phone records and sources. At the direction of Attorney General Bill Barr, the Trump DOJ clashed with the US Department of Justice New York Timesthe Washington Postand CNN among other major news organizations.
Upon taking office, Joe Biden described this chilling behavior as “just, just wrong”. And in mid-2021, Garland issued a memo kick-starting the change now cemented in regulation, touting the “national interest” in news media being able to protect their whistleblowing sources.
The effects of this change in Biden policy are already appearing in federal accounting. Every year since 2014, the Department of Justice has quietly published a review of legal action taken against members of the news media.
In 2020 — the last year of the Trump administration — the DOJ recorded seven subpoenas or warrants against reporters, personally signed by then-Attorney General Barr. In 2021, Garland’s first year at the helm of the DOJ, that number dropped to zero.
The 2020 report details highly controversial subpoenas, including for cell phone and email recordings New York Times journalists. The reporters were not in legal jeopardy, but the Trump DOJ requested the recordings to track down a federal leaker who had reportedly offered reporters details of contacts between the Russian ambassador and senior members of the Trump campaign.
The 2021 report released in September this year shows no similar activity. The report covers the events of January 6th. And he describes the voluntary consent of media representatives to investigators of the riot; The FBI did obtain grand jury subpoenas for journalists — but only, it says, after those reporters “agreed in advance to comply.”
But the report also contains significant alleged misconduct by reporters – well outside the context of news gathering. The litany of fees includes insider trading; money laundering; Stalking; and child exploitation. (A DOJ spokesman declined to provide details beyond the body of the report.)
The most interesting entry describes a reporter allegedly involved in “insider trading activities” with a former federal official. The report reads in part:
Investigators had determined the likely reason the news media member participated in the insider trading activities with three co-conspirators and was linked to the investigation’s main target, a former US Congressman.
In a darker allegation, the report details an arrest warrant served against a reporter’s Internet recordings after investigators “determined probable causes that the news media member engaged in conduct involving child exploitation.”
Another arrest warrant was issued against a media representative for “stalking offences”: the target of the investigation is said to have been “involved in the harassment and stalking of several people”. This perpetrator used spyware and hacked into social media accounts, allegedly trying to tarnish victims’ “reputations”.
The DOJ’s little-known annual reports are hidden in the agency’s FOIA library. Disclosure of legal action against journalists came as a result of a push for transparency during the Obama administration — following a controversy that erupted when it was revealed that Attorney General Eric Holder had personally signed a warrant to reveal personal email records of a Fox News to get reporters . (The reporter was never charged with a crime, and Holder has since expressed regret for that action.)
Even those who are skeptical of the Justice Department’s motives have no doubt that there are some bad actors in journalism, over thousands in the profession, whose crime levels in any given year are extreme enough to warrant a federal investigation.
However, watchdogs remain alert to the risk that federal law enforcement officials could attempt to retaliate against the activities of an aggressive First Amendment journalist with politically motivated legal scrutiny.
“Being a journalist doesn’t create a constitutional force field where you can’t be investigated for non-journalistic crimes,” said Ben Winzer, who leads the ACLU’s Speech, Privacy, and Technology Project. “On the other hand, you worry that the government might use other things as an excuse to crack down on the press.” A bad actor in the prosecutor’s office, he says, “might try to fabricate a supposedly independent investigation to harass a journalist . (Winzer adds that the DOJ’s annual reports at least provide a starting point for the public to question such decisions.)
Kel McClanahan, chief executive of the public interest law firm National Security Counselors, echoed Winzer’s concerns. “There’s a long history of government agencies in this country,” he says, “finding someone they don’t like and digging for something to investigate.”
Winzer insists the Biden administration’s official new policy is a “welcome” departure from the Trump years. “The point of the guidelines is not to solve all the problems between a free press and an executive branch obsessed with secrecy,” he says. “It’s just a matter of creating enough friction so that there is political accountability in those cases where the executive branch is still interfering with press freedom.”
Meanwhile, the DOJ continues to investigate journalists for alleged crimes that the department claims are unrelated to their journalism. As Rolling Stone The FBI searched the home of ABC news producer James Gordon Meek last April, as first reported. Sources familiar with the matter said Rolling Stone that federal agents allegedly found classified information on Meek’s laptop during their raid. The department declined to divulge further details about the raid, but a Justice Department spokesman told The Daily Beast on October 24 that “the department is strictly adhering to the Attorney General’s July 2021 memorandum, which stipulates the use of a coercive procedure in relation to Members of the news media engaged in news gathering activities.”
Two days later, Garland announced that this policy had been officially codified.