Summary: The Department of Justice under the Trump Administration has come under fire for its subpoenas of journalists’ metadata. Attorney Sam Dewey says this criticism should not lead to a change in DOJ policy.
In one instance, Congressional Democrats have pushed for a probe after it was recently revealed that the DOJ subpoenaed metadata records for journalists. While many were outraged when they heard the details, there may be a rush to judgement.
The 2019 investigation conducted by the Justice Department searched for the source of leaks of various classified information that happened during the Mueller investigation. DOJ has an important role in investigating credible allegations that classified information has been leaked. This function not only exists to “catch” those who leak, but also to clear the names of those who may have fallen under a suspicion later disproven.
Many recent critics claim the Trump Administration was overstepping its powers and inappropriately mixing politics with our independent justice system. But during the Obama administration, Eric Holder, the Attorney General at the time, issued similar subpoenas to reporters to hunt down leakers of classified information.
In response, the Inspector General at the Department of Justice has begun to review the investigation. That is all well and good. But in addition, Merrick Garland, the Attorney General, announced a new policy for the Justice Department barring prosecutors from secretly obtaining reporters records.
Attorney Sam Dewey points out that DOJ investigations like this should not be subjected to political battles. If the Attorney General believes laws have been broken, he or she should be able to use all the tools at his or her disposal to get to the bottom of the issue.
Much of the uproar around the subpoenas and the actions of the Trump DOJ ignores the fact that leaked classified information can cause a great deal of direct harm to the people who protect America. In some cases, it can put them in direct harm while they are serving abroad. At other times, it can compromise the U.S. position in critical negotiations.
The problem is that investigating leaks is not an easy task. Unfortunately, a common way to uncover the source of the leaks today often involves the subpoena of individuals’ metadata. Journalists can naturally become source of information in these investigations, as the information is eventually passed onto them from an insider who has the protected information.
Some draw a distinction between subpoenas to reporters and to all others due to the First Amendment. To be sure, that is an important consideration. But nothing in the First Amendment provides carte blanche to obtain and publish classified information. In fact, although it is not prosecuted, it is a crime to knowingly and willingly publish classified information. Looking at a reporter’s meta data is invasive to some extent, but no more so than reviewing the meta data of a suspected leaker’s family who are pulled into the investigation only by incidence of family relations.
There are also strict standards to which members of the DOJ must abide when they are investigating any member of the media. Before they do so, any prosecutor must exhaust all other reasonable alternative steps for conducting their investigation before issuing a subpoena for journalist records. This strikes the appropriate balance. Media should have some level of protection against subpoenas. But it should not be absolute.
Subpoenas are a valuable and necessary tool for the DOJ to conduct their job. If they suspect someone has played a part in leaking classified information, they need to be able to use this and any other tool they may have to find the source and shut it down. The absolute nature of the current policy is simply unworkable. Surely in some cases a confidential subpoena to a news organization is regrettably necessary.