The Department of Justice’s (DOJ) pledge that it will no longer secretly obtain the records of journalists has left a number of unanswered questions about the department’s handling of leak investigations initiated during the Trump era.
It’s not clear what high-ranking Biden officials knew and when as the Justice Department proceeded with cases involving reporters from three different media outlets or why the department continued to push for gag orders in two cases even after President Biden said late last month that seizure of journalist records was “simply wrong.”
The Justice Department under President Donald Trump obtained a gag order that kept top CNN executives from disclosing the government’s pursuit of reporter Barbara Starr email and other records as part of an apparent leak investigation.
According to CNN, the effort started in July of last year and was only revealed until Wednesday, when a federal judge unsealed parts of the case. CNN’s general counsel David Vigilante went on air to explain that he was unable to reveal details of the case even to Starr herself. She and reporters from The Washington Post and The New York Times were informed last month that the government had seized their records without their knowledge.
That’s why recent revelations about the Trump and Biden administrations’ efforts to seize newspaper records are so deeply troubling. (Similarly aggressive tactics were used by the Obama administration to plug leaks.)
Shortly before its term ended, the Trump administration secretly obtained phone records of journalists with CNN, The New York Times and The Washington Post. The Times reported that the Biden administration continued to press for email logs for four of its reporters.
The Biden administration’s reversal of the seizure policy signals a philosophical shift, prioritizing press freedom over government secrecy; a true reversal, however, will require them to keep their word.
After the Lafayette Park operation, Bowser declared that “if you are like me, you saw something that you hoped you would never see in the United States of America.” Now, her government is arguing not only that the protesters’ claims should be dismissed but that the district did and can continue to use tear gas in such situations, even to enforce a curfew.
In the meantime, the Biden administration agrees that the case should be dismissed entirely. The Department of Justice (DOJ) maintains that “Presidential security is a paramount government interest that weighs heavily in the Fourth Amendment balance.” The DOJ’s counsel, John Martin, added that “federal officers do not violate First Amendment rights by moving protesters a few blocks, even if the protesters are predominantly peaceful.”