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DOJ Says It Will No Longer Seize Reporters' Records


We're going to start with information that - it has to be said - hits close to home, the recent revelation that the Department of Justice had been using court orders to access journalistic material, like phone logs and email records, mainly in an attempt to investigate leaks. Earlier today, the U.S. Justice Department said it will no longer try to force news organizations to hand over these kinds of materials. This comes after disclosures about the Justice Department's efforts to investigate reporting at The New York Times and other news organizations.

We called NPR media correspondent David Folkenflik to tell us more about all this, and he's with us now. Welcome. Thank you for joining us.


MARTIN: So, first of all, could you just tell us what incident started all of this? I mean, how did all this start? And what was the Justice Department seeking?

FOLKENFLIK: So here's what we know. The Justice Department, starting under former President Trump's administration, was seeking documents, phone records and email logs from the correspondence of four senior national security and investigative reporters for The New York Times - one of whom's no longer there - from the period of call it spring 2017. And we don't know precisely why the government wanted that. But that's right around the time former President Trump was figuring out the fate of and decided to fire former FBI Director James Comey.

And they were seeking these records from Google, and they were seeking efforts from Google to keep this information from The Times. Google was fighting this, and this fight continued on into the Biden administration. This was - you know, seemed like a fairly sweeping effort by federal prosecutors to go inside the pockets, essentially, of reporters to see who they had been talking to.

MARTIN: So I understand that there was a gag order in this case. Could you tell us a bit more about that? First of all, what was that about? And how common is that?

FOLKENFLIK: Well, there was a gag order. And for a long stretch, for months, this wasn't disclosed to The Times. And when federal prosecutors did share this information with, among others, David McGraw, a top lawyer for The Times, he was enjoined from sharing this with senior officials at The New York Times. Finally, he won agreement consent to share it with The Times' publisher and CEO but not news leaders. They only learned about this earlier this week. So David McGraw, the lawyer for The Times, said he's never experienced that before. I've been covering media for 21 years now. I've never heard of it, may have happened but it seems like an extraordinary effort to shield this away from The New York Times itself.

MARTIN: David, I think people might remember that in recent weeks, President Biden has criticized the idea of using federal subpoenas to force reporters to share private reporting documents for leak investigations. So how does what we know now square with what he has said?

FOLKENFLIK: It doesn't. It contradicts it. In a sense, I think it was an embarrassment for the Biden administration. You saw Press Secretary Jen Psaki put out a statement this morning, saying, essentially, it contradicted the policy the president had given to the Justice Department in terms of having hands off, not using subpoenas to go into reporters' notebooks and phone logs and the like and that the Justice Department had affirmed it would no longer do that.

And in a statement from the Justice Department today, you saw a senior Justice Department spokesman say, hey, we affirmed that - the role that the press plays in democracy, and we're not going to do this any longer, noting it was a departure from long-standing department practice, that is, that the prosecutors would use often whatever powers they had at hand to try to figure out who had done the leaking.

MARTIN: Well, I was going to say - where does this leave us? Because I think that people who - you know, you don't have to follow sort of this issue as closely as you do to know that there's this long history of tension between news organizations and the government, I mean, dating back forever, where - or at least, you know, decades, where reporters want to find things out. Often, the government doesn't want them to find things out, either because it's embarrassing or sort of inconvenient. That kind of open hostility was something that many people were treated to during the previous administration, where I think that kind of open hostility was very raw, and the public was made privy to it.

But this kind of dance between the administration and reporters over information is not new. Can you just put this whole episode into context for us? I mean, was this kind of a new level of effort by the government to obtain information from journalists? And, you know, where does this - where are we now?

FOLKENFLIK: Right. You talk about this going back forever. It goes back certainly to two signal events - the Pentagon Papers and the investigation of leaks that became and inspired the Watergate scandal that led to the downfall of President Nixon. These are - been attention that have waxed and waned over the decades since. And I think that you've seen, in a sense, two ways to look at this.

Merrick Garland, as attorney general, has put forward a new policy. It is not necessarily going to be binding on his successors but nonetheless to say, we are not going to use the courts to compel journalists and news organizations to turn over material that reveal who leaks to them. And why is that important? Because that is how journalists often hold powerful figures accountable in government, which is a key and an integral part of the workings of our democracy. We need as voters to have the information to judge those who do things in our name, right?

The second way to look at it, however, is that there's kind of a common thread, a through line. If you look from President George W. Bush's years to the tenure of President Obama to the tenure of President Trump, maybe with different flavors, maybe with different levels of enthusiasm, nonetheless, the Justice Department under all of them undertook muscular investigation of what were termed national security leaks, and people went to jail under it. You've had people - reporters investigated under the Espionage Act, one who used to work for Fox News cited as a co-conspirator, although not an indicted one.

And in this instance under Merrick Garland, who has this new policy, nonetheless, he used those powers available to him, which, because of the way technology evolved, have become much more able to focus on where the leaks happen and who's doing it.

MARTIN: That is NPR media correspondent David Folkenflik. David, thank you so much.

FOLKENFLIK: You bet. Transcript provided by NPR, Copyright NPR.

David Folkenflik was described by Geraldo Rivera of Fox News as "a really weak-kneed, backstabbing, sweaty-palmed reporter." Others have been kinder. The Columbia Journalism Review, for example, once gave him a "laurel" for reporting that immediately led the U.S. military to institute safety measures for journalists in Baghdad.