Most of our editorials focus on local or regional issues. There’s a reason for that. Most of the time, that’s where our opinions can actually have an effect. It’s entirely reasonable to ask why anyone at the national level should listen. Locally, though, it’s reasonable to ask why they shouldn’t.
But there are times when we have to speak up, when the national issue is critical enough that it is incumbent upon us to take a position and explain why. Monday’s announcement by Attorney General Merrick Garland is an example of such an event.
Garland on Monday prohibited federal prosecutors from taking journalists’ records while pursuing leak investigations. There are exceptions, but the bar for doing so is high. To do so, prosecutors must show the reporters pose national security risks such as working for a foreign government or involvement in terrorism. There’s also an exception for events like kidnapping or crimes against children, which also strike us as reasonable.
Garland’s announcement drew praise. Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, said the policy would “ensure that journalists can do their job of informing the public without fear of federal government intrusion into their relationships with confidential sources.”
It’s the right step for the Justice Department and for our country. Journalists, by the very nature of their work, talk to people. They hear things. They ask questions and they follow up on issues. That means a journalist’s notebook is a potentially rich source of information, and one that has proven all too tempting for prosecutors in the recent past.
While the announcement will likely be cast as a departure from Trump-era practices, that’s not entirely accurate. The Justice Department under former President Donald Trump did aggressively seek journalists’ records. That is true. But his was hardly the first administration to do so.
In 2012, President Barack Obama supported his attorney general’s efforts to find out who leaked information about drone strikes and efforts to target nuclear reactors in Iran. That effort included targeting journalists’ records. And it came perilously close to targeting journalists themselves. A search warrant in 2010 named a reporter whose records were sought as a co-conspirator of a federal employee under investigation for leaking information.
The thing is that the vast majority of the time the information prosecutors seek is available from other sources. Prosecutors can avail themselves of their power to subpoena, after all, calling upon the power of the state to compel disclosure of information. That’s a far more potent ability than a reporter’s ability to ask for information.
The greater problem with federal investigators’ actions is that it inspires copycat subpoenas down the line. While some may genuinely see such a move as a last-ditch effort to get information, others are just plain lazy. One lawyer issued a subpoena for articles a paper published — information that was readily available had he bothered to check at the library or on the paper’s website. The paper had that subpoena quashed.
Reporters are not a substitute for lazy lawyers who don’t have the time or interest in assigning staff to do research. News outlets are not a shortcut for attorneys who can’t be bothered to look up information or do interviews themselves. And, when subpoenas are used in that manner, it’s a problem.
The Constitution doesn’t explicitly address the issue at hand. But, given the First Amendment’s protections for the press, it isn’t much of a leap to suggest it was designed to indicate the federal government should act with extreme caution when it comes to behaviors that could chill reporters’ abilities to do their jobs.
We’re under no illusions that the federal government will suddenly be as open or willing to release information as it should be. That means anonymous sources will still occasionally have a place in reporting. Besides, this is a policy change, one that can be reversed just as easily as it was implemented.
Despite that, it remains a step in the right direction, a brake on a practice that had become too common. And, just as the habit of targeting reporters for subpoenas trickled down, it is likely this brake will be considered by far more than the federal attorneys to whom it explicitly applies.
That makes it a win. For reporters, of course, but also for an informed public.