The Washington Post revealed on Friday that last year, the Department of Justice under former President Trump obtained the phone records of three of its national security journalists, with a subpoena that would likely have been approved by former Attorney General William Barr directly.
These subpoenas represent an outrageous invasion of the First Amendment rights of journalists to communicate with sources, and the defense of their use by the Biden administration raises alarming questions about its commitment to press freedom.
Former President Trump's open antipathy to journalists and newsrooms was exceptional, but this act to invade their privacy is unfortunately not an outlier in the past several administrations. When then-Attorney General Jeff Sessions announced a crackdown on leakers within the government, it was a disappointing development—but it was best observed as an extension of Obama-era efforts to hunt and punish leaking, not a reversal of earlier policy.
The phone records obtained by the Department of Justice likely relate to a story pertaining to an investigation into 2016 Russian election interference published by the three journalists in 2017. Notably, it appears the records were sought not immediately upon publication, but rather at some point in 2020.
Per its official “media guidelines,” the Department of Justice is obligated to notify news organizations when it obtains records that involve their reporters — and in most cases, that notification must come in advance. Why the notification instead came months after the data requests, and years after the reporting, is a question for which we absolutely need an answer. As the Reporters Committee for Freedom of the Press put it, we must know “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.”
Because the gap between subpoena and disclosure spanned administrations, it offered a chance for Biden and his appointees to draw a sharp distinction with the anti-press efforts of his predecessor; unfortunately, as with the DOJ's continued prosecution of Julian Assange, the Biden administration chose to follow Trump instead of repudiate his actions.
Immediately after Biden's inauguration, we observed that his administration sought to distance itself rhetorically from Trump, but time would soon tell whether they would demonstrate a commitment to that distance through actual policy decisions. Press Secretary Jen Psaki attempted to draw a stark contrast with her predecessor by professing a "deep respect for the role of a free and independent press," but these words ring incredibly hollow now that Biden's DOJ is defending the surveillance of reporters.
Trump flaunted his disregard for press freedom. And it was, of course, his Department of Justice that sought these records, on an investigation that was known to affect him personally. But for the current Biden administration to continue to defend the indefensible underscores that the hard work of ensuring press freedom does not end simply with a change of presidents.
