The Department of Justice says it is no longer treating acts of journalism as crimes, but insists it is probing some alarming crimes potentially committed by journalists
The Biden administration has taken pains to distance itself from Donald Trump’s treatment of the media — which the 45th president delighted in railing against as “the enemy of the people.”
And in late October, Attorney General Merrick Garland officially announced that the Department of Justice will no longer investigate members of the media for their news reporting — including for the possession of classified information. In his remarks, Garland celebrated an independent press as “vital to the functioning of our democracy.”
On the surface, this new policy — initially published in July, 2021 — represents a sea change from the chilling tactics of the Trump era. A little-noticed DOJ report documenting federal warrants and subpoenas against reporters over the course of 2021 appears to show a cease-fire in government hostilities against acts of journalism.
But that same report also records a significant number of federal investigations against reporters for other crimes — including financial crimes, stalking, and child exploitation, according to records reviewed by Rolling Stone. In each and every case, the Justice Department asserts, “the suspected criminal conduct was wholly outside the scope” of the journalist’s “newsgathering activities.”
These contrasting facts leave skeptics with concerns: Could any of the recent criminal investigations against journalists mask payback for unwanted reporting?
The new regulation from the Department of Justice — effective Nov. 3 — directs federal law enforcement to stop issuing warrants and subpoenas against members of the media who are engaged in news gathering, including on leaked classified information. Introducing the policy Garland insisted that reporters must have “the freedom to investigate and report the news.” Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, helped shape the new regulation, and heralded it a “watershed moment” in “protecting the rights of news organizations.”
Officially, the Biden administration is repudiating the heavy-handed approach of the Trump regime, which sought to stanch 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 New York Times, the Washington Post, and CNN among other major news organizations.
Upon taking office, Joe Biden described this chilling behavior as “simply, simply wrong.” And in mid-2021, Garland issued a memo jump-starting the change now cemented in regulation, touting the “national interest” in news media being able to safeguard their whistleblowing sources.
The effects of this Biden policy shift already appear in federal accounting. Every year since 2014, the Justice Department has quietly released an audit of legal actions taken against members of the news media.
In 2020 — the last year of the Trump administration — the DOJ recorded seven subpoenas or warrants served against reporters that were personally signed off on by then-Attorney General Barr. In 2021, the first year with Garland at the head of DOJ, that number fell to zero.
The 2020 report describes highly controversial subpoenas, including for cell phone and email records belonging to New York Times journalists. The reporters were not in legal jeopardy, but the Trump DOJ demanded the records in an effort to track down a federal leaker, who’d reportedly offered the reporters details about contacts between the Russian ambassador and high-ranking members of the Trump campaign.
The 2021 report, released this September, shows no similar activity. The report encompasses the events of Jan. 6. And it describes voluntary compliance by members of the media with investigators of the insurgency; the feds did obtain grand jury subpoenas for journalists — but only, it says, after these reporters “agreed in advance to comply.”
But the report also includes significant alleged wrongdoing by reporters — far outside the context of newsgathering. The litany of charges includes insider trading; money laundering; stalking; and child exploitation. (A DOJ spokesperson refused to elaborate on any specifics beyond the text of the report.)
The most intriguing entry describes a reporter who allegedly participated in “insider trading activities” with an ex-federal officeholder. The report reads in part:
Investigators had established probable cause that the member of the news media had participated in the insider trading activities with three coconspirators and was in communication with the primary target of the investigation, a former U.S. Congressperson.
In a darker allegation, the report describes a warrant served on a reporter’s Internet records after investigators “established probable cause that the member of the news media had engaged in conduct involving the exploitation of children.”
Another warrant against a member of the media was served for “stalking offenses”: The target of the investigation allegedly “engaged in harassment and stalking of multiple people.” This perpetrator used spyware and hacked into social media accounts, and allegedly sought to “damage the reputations” of the victims.
The DOJ’s little-known annual reports are tucked away in the agency’s FOIA library. The disclosure of legal actions taken against journalists was born of a transparency push during the Obama administration — following a controversy that erupted when it became public that Attorney General Eric Holder had personally signed off on a warrant to obtain personal email records of a Fox News reporter. (The reporter was never charged with a crime and Holder has since expressed regret for that action.)
Even those who are skeptical of the DOJ’s motives don’t doubt that there are some bad actors in journalism, across the thousands in the profession, whose criminality in any given year is extreme enough to warrant a federal investigation.
But watchdogs remain alert to the risk that federal law enforcement might seek to retaliate against the first-amendment activities of an aggressive journalist with politically motivated legal scrutiny.
“Being a journalist doesn’t create some kind of constitutional forcefield, where you can’t be investigated for non-journalistic crimes,” says Ben Winzer, who directs the ACLU’s Speech, Privacy, and Technology Project. “On the other hand, you do worry that the government might use other things as a pretext for going after the press.” A bad actor in the prosecutor corps, he says, “could try to contrive some putatively unrelated investigation to harass a journalist.” (Winzer adds that the DOJ’s annual reports at least offer a starting point for the public to scrutinize such decisions.)
Kel McClanahan, executive director of the public interest law firm National Security Counselors, echoes Winzer’s concerns. “There’s a long history in this country of government entities,” he says, “finding someone they don’t like and digging at something to investigate them for.”
Winzer insists that the Biden administration’s official new policy is a “welcome” shift from the Trump years. “The point of the guidelines is not to cure all of the problems between a free press and an executive branch that is addicted to secrecy,” he says. “It’s just to create enough friction, so that in those instances where the executive will still intrude on press freedom, there is political accountability.”
Meanwhile, DOJ continues to investigate journalists for suspected crimes that the Department insists have nothing to do with their journalism. As Rolling Stone first reported, the FBI raided the home of ABC News producer James Gordon Meek last April. Sources familiar with the matter told Rolling Stone that federal agents allegedly found classified information on Meek’s laptop during their raid. The Department wouldn’t reveal any further details about the raid, but a DOJ spokesperson told The Daily Beast on Oct. 24 that “the Department strictly adheres to the Attorney General’s July 2021 memorandum prohibiting the use of compulsory process with regards to members of the news media acting within the scope of newsgathering activities.”
Two days later, Garland made his announcement that this policy had been officially codified.