At the height of Scandal Mania a few months ago, Republicans and a few too many reporters tried to tie together three disparate stories in the hopes of presenting a “White House in crisis.” The first was the attack in Benghazi, and those political allegations were quickly discredited. The second was the IRS scrutiny of tax-exempt applications, and those allegations were disproven soon after.
The third was … what was the third one, again? Ah yes, it was the Justice Department investigating a national-security leak and subpoenaing the phone logs of Associated Press reporters. It was never clear why the Beltway considered this a “White House scandal,” exactly, except for the apparent need to have three elements instead of two.
Ironically, it was this AP story that actually had some real significance. It was a policy dispute about the scope of subpoena powers, not a political scandal about abuse of power, and my hope was that the story might lead to constructive reforms, perhaps even a media shield law.
That, of course, was a pipe dream – Congress can barely keep its lights on, making constructive reforms on subpoena powers completely impossible, and besides, Republicans actually liked the subpoenas and didn’t really see this as a scandal in need of a remedy anyway.
The good news is, the DOJ is acting on its own, tightening its own internal guidelines.
Attorney General Eric H. Holder Jr., who has been criticized for the Justice Department’s aggressive tactics in secretly obtaining phone logs and e-mails of reporters as part of leak investigations, is expected to issue new guidelines on Friday that would significantly narrow the circumstances under which journalists’ records could be obtained, a Justice Department official said.
The new guidelines, which the official said would take effect almost immediately, would prevent the Federal Bureau of Investigation from portraying a reporter as a co-conspirator in a criminal leak as a way to get around a legal bar on secret search warrants for reporting materials, as an agent did in a recently revealed search warrant affidavit involving a Fox News reporter.
It’s important to emphasize that federal prosecutors will still be able to obtain reporters’ phone logs, but this policy shift will make it more difficult through higher search-warrant standards, while ensuring more advance notice for news organizations. To go further, the Justice Department would need Congress to change the law, and, well, Congress is a dysfunctional embarrassment that’s unlikely to take up the issue anytime soon.
On the whole, then, today’s announcement represents real progress for the freedom of the press.