The Biden Administration is now defending the confiscation of phone records from journalists to find out who is leaking stories to the media, a practice widely used under President Donald Trump, the Washington Examiner reported last week.
“While rare, the (Justice) Department follows the established procedures within its media guidelines policy when seeking legal process to obtain telephone toll records and non-content email records from media members as part of a criminal investigation into unauthorized disclosure of classified information,” Justice Department Spokesperson Marc Raimondi told the Examiner for the May 13 story. “The targets of these investigations are not the news media recipients but rather those with access to the national defense information who provided it to the media and thus failed to protect it as lawfully required.”
According to the story, a case disclosed last week showed the department sent letters to three national security reporters, informing them that the department used its subpoena power to secretly obtain their phone records in 2020, telling the reporters that the suspected “leakers” were the target of the investigation and not the journalists themselves.
"(This) was worse than (President Richard) Nixon because Nixon never actually seized any records," former White House Counsel John Dean told the Examiner. “This was because Nixon could develop ‘no real probable cause.’"
In 2014, President Barack Obama’s Attorney General Eric Holder prosecuted nine cases, more than all the previous presidents combined, and justified the practice in the same way, saying “no reporter is going to go to jail for doing his or her job.”
According to the article, Trump escalated the practice, even criticizing the Attorney Jeff Sessions for having “taken a very weak position” on leakers.
The recent records seized, according to the Examiner’s story, covered phone calls made and received between April 15 to July 31, 2017 following the 2016 publication of stories that said Sessons, an Alabama senator at the time, had discussed the Trump presidential campaign with Russian Ambassador Sergey Kislyak.
“Whenever the government seeks to obtain records of journalists’ communications, it raises serious First Amendment concerns because it interferes with the free flow of information to the public. For exactly that reason, the Justice Department has guidelines in place that require, with only narrow exceptions, notification to an affected news organization before federal prosecutors can seize a journalist’s toll records," Reporters Committee for Freedom of the Press Executive Director Bruce Brown said in a statement to the Examiner. “It is imperative that the new justice department leadership explain exactly when prosecutors seized these records, why it is only now notifying the (paper), and on what basis the Justice Department decided to forgo the presumption of advance notification under its own guidelines when the investigation apparently involves reporting over three years in the past.”
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