The Justice Department on Wednesday announced revised guidelines for obtaining records from the news media during leak investigations, removing language that news organizations said was ambiguous and requiring additional consultation before a journalist can be subpoenaed.
The updated policy revises protocols announced last year amid outrage among news organizations over Obama administration tactics. It was released just as the Justice Department abandoned its yearslong efforts to compel a New York Times reporter to testify in the trial of a former CIA officer accused of disclosing classified information.
The guidelines were designed to give news organizations an opportunity to challenge subpoenas or search warrants in federal court. But news organizations expressed concern that the protections applied only to journalists involved in "ordinary newsgathering activities," language they said was vague and could be exploited by zealous prosecutors. That language has been deleted in the new guidelines, which also require the Justice Department's criminal division to be consulted before a journalist is subpoenaed.
"These revised guidelines strike an appropriate balance between law enforcement's need to protect the American people and the news media's role in ensuring the free flow of information," Attorney General Eric Holder said in announcing the new protocols.
Under Holder, the department secretly subpoenaed telephone records from Associated Press reporters and editors during an investigation into a 2012 story about a foiled terror plot, and labeled a Fox News journalist as a "co-conspirator" and used a search warrant to obtain emails from him.
But in the last year, Holder has publicly expressed regret for the actions in the Fox News case and stated that no journalist would go to jail under his watch for doing his or her job.
Last month, the Justice Department said it would no longer force New York Times reporter James Risen to reveal his source in the trial of ex-CIA officer Jeffrey Sterling, which opened this week in Virginia. On Monday, prosecutors formally announced that they were abandoning all efforts to seek his testimony.
"What they would lose in public perception would far outweigh what they would gain by forcing him to do something he's already made clear he wasn't going to do," said Jane Kirtley, a University of Minnesota professor of law and ethics.