May 25, 2017

Holder May Rein In Prosecutors on Leaks

According to an adviser familiar with the deliberations, Mr. Holder has discussed expanding a requirement for high-level review of proposed subpoenas for reporters’ phone records so that it would include e-mails. He is also examining whether to tighten a standard for when officials may seek such records without giving prior notice to the news organization.

President Obama has given Mr. Holder until July 12 to make his proposals, and Mr. Holder wants to complete an overhaul of department regulations on leak investigations before his tenure is over, said the adviser, who spoke on condition of anonymity because the deliberations are preliminary. Mr. Holder has given no indication that he intends to step down any time soon, however.

The Thursday meeting was intended to seek additional ideas and lay the groundwork for an internal push if prosecutors and intelligence officials balk at giving up some powers in leak investigations, the adviser said. Further meetings with both news organizations and government officials are planned, including another news media session on Friday.

The first news media meeting was off the record, and The New York Times was among several organizations that were invited but did not attend because it objected to that condition. At least two active leak investigations and cases involve Times reporters.

Representatives from The Daily News of New York, The New Yorker, Politico, The Wall Street Journal and the Washington Post did attend, according to several participants. The group gathered in a conference room near the office of the deputy attorney general, James Cole, and met with him, Mr. Holder, and seven other officials. The meeting started after 5 p.m. and lasted more than an hour.

Mr. Holder began, they said, by acknowledging criticism that the Justice Department had tipped too far toward aggressive law enforcement and away from ensuring the free flow of information to the public. He expressed a broad commitment to update internal guidelines, including steps to reflect changes in technology since they were written three decades ago.

Several of the news media representatives, participants said, told the officials that leak investigations have had a chilling effect on both reporters and government officials. They urged more rigorous procedures for internal review of subpoena requests, including the scope of any records sought and whether to provide advance notice, and argued that there needed to be more internal and external checks and balances on prosecutors.

There have been previous efforts to consider revising the investigative guidelines. In 2003, for example, a group of lawyers representing The Associated Press, Gannett, The Washington Post and the Reporters Committee for Freedom of the Press worked with Patrick Kelley, then the acting general counsel of the F.B.I., to develop a proposal.

The media lawyers eventually submitted a draft text and section-by-section analysis to the F.B.I. But after the 2004 election and turnover at the Justice Department, the Bush administration lost interest and dropped it, according to David Schulz, a media lawyer who led the informal project.

The 2004 proposal would in some ways have gone further than what has been initially discussed at the Justice Department. It would have expanded an existing rule that offers some protection from subpoenas for a reporter’s call logs so that it would also to cover other types of investigative tactics, like going through a reporter’s trash or obtaining a reporter’s credit card and travel records. The existing rule requires that before issuing a subpoena for phone records, other ways of obtaining information must be tried first, and the attorney general must sign off.

The 2004 proposal did not, however, contain several other ideas that Mr. Holder has discussed, according to the adviser. One example is a proposal to require prosecutors to have the Justice Department’s public affairs officials review a request for a reporter’s records before seeking the attorney general’s approval for a subpoena.

This article has been revised to reflect the following correction:

Correction: June 1, 2013

An article on Friday about a series of meetings Attorney General Eric H. Holder Jr. has begun holding with leaders of some news media outlets misstated the surname of a media lawyer who led a project to consider revising the guidelines that the Department of Justice uses to investigate journalists. He is David Schulz, not Schultz.

Article source: http://www.nytimes.com/2013/05/31/us/politics/holder-may-rein-in-prosecutors-on-leaks.html?partner=rss&emc=rss