New rules require Justice to report on journalist subpoenas

The Justice Department announced new guidelines effective immediately that will require it to issue annual reports detailing every time it tries to get a search warrant or subpoena a journalist.

The new guidelines will also require Justice to notify news organizations about any subpoena the department sought that pertained to reporting by their employees.

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A decision to keep the subpoena secret would have to be made only by the attorney general and could be kept under wraps for a maximum of 90 days under the new rules.

The new procedures were announced in response to outrage over Justice’s seizure of Associated Press phone records and its spying on Fox New reporter James Rosen. 

Attorney General Eric Holder, who presented the report to President Obama on Friday afternoon, said the new internal policy changes would allow the DOJ to better strike a balance between preserving American civil liberty protections and maintaining national security interests.

“These revised guidelines will help ensure the proper balance is struck when pursuing investigations into unauthorized disclosures,” Holder said in a statement. 


The White House said Holder’s report was “an important step” towards striking that balance and urged Congress to quickly pass legislation creating a media shield law.

White House spokesman Matt Lehrich also stressed that not every leak of classified information from a government official requires a criminal investigation or prosecution.

“There are circumstances in which leaks are better addressed through administrative means, such as withdrawal of security clearances or imposition of other sanctions,” said Lehrich in a statement. “The president agrees with the Justice Department’s recommendation and has directed his team to explore how the administration could more effectively use alternatives in appropriate cases.”

Under Holder's new guidelines the Director of National Intelligence is required to sign off within 30 days on the level or significance of a leak, and whether it jeopardizes national security.

In his review of the DOJ's internal rules, Holder consulted with numerous media organizations, including The Hill, as well as legal and intelligence experts and bloggers.

The new guidelines are meant to quell a furor over Justice's handling of two leak investigations.

In the AP case, Justice surreptitiously subpoenaed the records of 20 Associated Press phone lines as part of its investigation into the leak of sensitive information pertaining to a foiled terrorist plot in Yemen. The AP was not notified about the secret subpoena until nearly one year later.

In the second case, the DOJ applied for a search warrant against Rosen, and cited him as a criminal co-conspirator in a case involving State Department employee Stephen Kim, who allegedly shared unauthorized information about North Korea.

In building a case against Kim, the department secretly seized Rosen’s phone and email records, while tracking his movements in and out of the State Department building.

Legal experts and FBI Director Robert Mueller have testified that it is common for prosecutors to cite a person as a co-conspirator without ever seeking to bring charges against them.

Holder was himself a major figure in Justice’s targeting of reporters. Some critics observed that when Obama called on Holder to look into the issue, he effectively asked the attorney general to investigate himself.

House Republicans have criticized Holder and the DOJ for citing Rosen as a co-conspirator, saying it's at odds with Holder’s testimony that the DOJ has never sought to bring charges against a reporter for receiving classified information.

Current guidelines allow for the DOJ to keep a media subpoena secret if “the responsible Assistant Attorney General determines that such negotiations would not pose a substantial threat to the integrity of the investigation in connection with which the records are sought.”

Holder said that the DOJ has done all that it can in its power to ensure the sanctity of the media’s rights, but that more should be done by Congress.

“For that reason, we continue to support the passage of media shield legislation,” he said. “I look forward to working with leaders from both parties to achieve this goal.”

House Judiciary Republicans are planning to issue a separate report on the DOJ’s case against Rosen in the coming months.

— This story was updated at 6:10 p.m.