Time for a quick quiz. Last spring, much of the political media slipped into a frenzy for a few weeks, telling the public that the Obama White House was ensnared in three “big,” “mushrooming” scandals at the same time. Nine months later, can you name all three?
One was the IRS controversy, which turned out to be meaningless. The second was the Benghazi attack from the year before, and more fair-minded people would have to agree that the allegations and conspiracy theories involving this story turned out to be baseless.
The third was … what exactly? Even at the time, the third was a little fuzzy, but for more of the political media, it was the Justice Department subpoenaing reporters’ phone logs as part of a leak investigation. It was difficult to characterize this as a proper political scandal – most of the White House’s GOP critics had no qualms with the subpoenas – but much of the media decided it’d be more fun to say there were three “scandals,” instead of two, since three ostensibly makes a pattern.
Not long after the controversy, the Justice Department began an internal review process to determine how best to prevent similar concerns in the future. Friday, Attorney General Eric Holder signed new guidelines intended to make these subpoenas far more difficult.
The rules, which will be published in the Federal Register next week, carry out a set of changes that Mr. Holder announced last July and described in a six-page report at the time. A preamble described the revisions as intended to ensure that the department “strikes the proper balance among several vital interests,” like protecting national security and “safeguarding the essential role of the free press in fostering government accountability and an open society.”Among other things, the rules create a presumption that prosecutors generally will provide advance notice to the news media when seeking to obtain their communications records. […]The rules also address a law forbidding search warrants for journalists’ work materials, except when the reporter is a criminal suspect.
This is not to say the subpoenas will never happen – Congress hasn’t passed a shield law – but they’ll be rarer and more difficult, and news organizations will have more advance notice, which will offer editors and publishers a chance to mount a defense.
And in the larger context, the recent argument about Holder’s efforts continues to hold up. He recently unveiled, for example, “a bold effort by his department to eliminate the distinction between same-sex and opposite-sex married couples in the federal justice system.” He’s fighting against conservative restrictions on voting rights. He’s allowing Colorado and the state of Washington to pursue marijuana legalization. He’s fighting for sentencing reforms. He’s combating “Stand Your Ground” laws.
And just two weeks ago, Holder made a very compelling case that it’s unnecessary, unjust, and counterproductive to deny the formerly incarcerated the right to vote.
On top of all of this, the A.G. is now also taking steps to protect reporters. Granted, the need for these protections are now more acute in light of Justice Department excesses, but nevertheless, the new protections are welcome and evidence of progress.
Update: Marcy Wheeler makes the case that the new DOJ guidelines include some important loopholes, most notably because they don’t apply to National Security Letters.