Rosenstein, DOJ exploring ways to more easily spy on journalists
For months now, the Department of Justice (DOJ) quietly has been working on a revision to its guidelines governing how, when and why prosecutors can obtain the records of journalists, particularly in leak cases. The work has been supervised by Deputy Attorney General Rod Rosenstein’s office, especially since former Attorney General Jeff Sessions departed, but is not wrapped up. The effort has the potential to touch off a First Amendment debate with a press corps that already has high degrees of distrust of and disfunction with the Trump administration.
Acting Attorney General Matt Whitaker is aware of the effort but has not been given a final recommendation. Sources close to Whitaker say he will await final judgment but, in recent days, has developed reservations about proceeding with the plan. “After a lengthy period of turmoil and regular criticism from President Trump, DOJ has enjoyed a period of calm normalcy that has put employees’ focus back on their work and not the next tweet. Matt doesn’t want to disrupt that unless a strong legal case can be made,” a source close to the acting AG told me.
The current guidelines have their origins back to a time when Bill Clinton was president and Janet Reno was attorney general, long before WikiLeaks was a twinkle in Julian Assange’s eye. They were designed to strike a balance between law enforcement’s investigative interests and the First Amendment rights of reporters. In layman’s terms, the current system requires prosecutors in most cases to exhaust all obvious investigative methods for identifying leaks before seeking to intrude on a journalist’s free-speech rights. In addition, the rules generally have required DOJ to alert news organizations in advance of a possible subpoena, giving both sides a chance to negotiate before the subpoena — viewed as a nuclear button by most journalists — gets pushed.
Multiple sources familiar with the ongoing DOJ review tell me that it has two main goals. The first is to lower the threshold that prosecutors must meet before requesting subpoenas for journalists’ records; the second is to eliminate the need to alert a media organization that Justice intends to issue a subpoena. With Rosenstein signaling last week that he plans to step aside in a few weeks, palace intrigue has risen inside Justice about whether the rule changes will be finished and whether Whitaker might reject them. If not, a process begun under Sessions could drag into the tenure of a new attorney general. Trump has nominated William Barr for the job, which Barr held under President George H.W. Bush three decades earlier.
According to my sources, the arguments for changing the rules emanate from the stresses that a massive increase in criminal leak investigations have placed on the DOJ. Sessions disclosed more than a year ago that there has been a threefold increase in criminal leak probes, which have ensnared everyone from fired FBI deputy director Andrew McCabe to a senior Senate staffer who handled classified documents.
https://thehill.com/opinion/judiciary/425189-rosenstein-doj-exploring-ways-to-more-easily-spy-on-journalists