Gabe Rottman on the Justice Department's New Guidelines on Press Subpoenas
Jun 5, 2023
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Gabe Rottman, from the Reporters Committee for Freedom of the Press, discusses the Justice Department's new guidelines on press subpoenas. They explore the history, the shift in policies, and the new red line policy. They also touch on leak investigations and the impact on reporters going forward.
The new policy on press subpoenas by the Justice Department focuses on defining news gathering and restricts subpoenas in most circumstances, creating a red line policy against them.
The definition of news gathering under the new policy encompasses the pursuit, collection, and obtaining of information for public disclosure, while criminal activities like burglary and unauthorized access to computer networks are excluded.
Deep dives
The evolution of guidelines on press subpoenas
The podcast episode discusses the history of the Justice Department's guidelines on press subpoenas, starting from the controversies in the Nixon administration in 1970. It explores the shifting policies over the years, the rise of leak investigations, and the new policy issued by the Attorney General. The new policy focuses on defining news gathering and imposes a red line policy against subpoenas in most circumstances. The podcast examines the psychology behind the decision and the potential implications for reporters and criminal investigations going forward.
Defining news gathering and exceptions
The podcast delves into the definition of news gathering under the new policy, which includes the pursuit, collection, and obtaining of information for disclosure to the public. It also evaluates the exceptions for criminal activities, such as burglary and unauthorized access to computer networks, which are not considered news gathering. The podcast highlights the gray areas and uncertain scenarios, like the solicitation of classified information, and discusses the role of higher-level officials in determining whether an activity falls within the scope of news gathering.
Comparison with previous policy and potential impact
The podcast compares the new policy to the previous balancing test approach, where investigative needs were weighed against First Amendment interests. It suggests that under the new policy, past cases like the Associated Press subpoena and seizures from news outlets may have had different outcomes. However, the podcast acknowledges lingering questions about how the policy will work in practice and whether it will provide adequate protections. It also addresses concerns about potential shifts in policy under future administrations and the need for durable legislation.
Public response and considerations
The podcast analyzes the reaction to the new policy among the institutional press and expresses enthusiasm for its explicit protections. However, it acknowledges the need for further examination and possible future adjustments due to the evolving nature of press-DOJ dynamics. The podcast also explores the tension between protecting the press and addressing public concerns about classified information leaks and emphasizes the importance of finding a balance between the two.
It's been about six months since the Attorney General issued new guidelines on compulsory process to members of the press in criminal and national security investigations, and two officials of the Reporters Committee for Freedom of the Press—Bruce Brown and Gabe Rottman—wrote a detailed analysis of the document in two parts for Lawfare.
Rottman joined Lawfare Editor-in-Chief Benjamin Wittes to go through the document carefully: the long history that led to it, the shifting policies that have gotten more restrictive over the years since the Supreme Court ruled in Branzburg v. Hayes, the ramp-up of leak investigations and reporter subpoenas in the Obama and Trump administrations, and the new policy that creates a red line policy against them under most (but not all) circumstances. They talked about the document, about why the Justice Department has forsworn a historic and upheld authority, and about what it means for reporters and criminal investigations going forward.