Attorney General Pam Bondi has rolled back a constraint on leak inquiries that the Justice Department imposed more than a decade ago, making it easier for investigators to get around a legal bar on search warrants to seize news gathering records.
The safeguard was imposed in 2013 after the revelation that the F.B.I. had portrayed a Fox News reporter as a criminal to bypass restrictions on seizing reporters’ emails.
The change was part of a revised regulation Ms. Bondi issued this week involving leak inquiries. Most of the discussion has focused on how investigators can once again use court orders, subpoenas and search warrants to go after reporters’ information, ending a flat ban on those tactics imposed in 2021 by Attorney General Merrick B. Garland.
Essentially, Ms. Bondi returned to the standard in place before Mr. Garland’s intervention. But a close reading shows that in doing so, she also deleted a key section of the earlier regulation that had emerged from the Fox News incident. The section had limited the ability of investigators to sidestep a 1980 law that generally bars search warrants for newsroom records.
The omission was striking because many conservatives and Republicans were outraged by the events that led the department, under Attorney General Eric H. Holder Jr., to make the reform. The targeted reporter at Fox News, James Rosen, is now the chief White House correspondent for another conservative network, Newsmax.
In a memo last week announcing the end of Mr. Garland’s ban on using compulsory tools to go after reporters’ communications records, notes or testimony, Ms. Bondi declared: “This Justice Department will not tolerate unauthorized disclosures that undermine President Trump’s policies, victimize government agencies, and cause harm to the American people.”
But her memo did not mention any intent to also eliminate the change inspired by the Fox News incident, which remained in place under the first Trump administration. The department press office did not respond to a request for comment.
Gabe Rottman, the vice president of policy for Reporters Committee for Freedom of the Press, warned that the deletion of the safeguard raised the possibility “that you could see a repeat of the James Rosen case” and said it “raises significant First Amendment concerns.” He posted an analysis of the new regulation on the group’s blog.
“Reducing or eliminating protections from journalists and their sensitive news gathering records impairs not just the press but the public,” Mr. Rottman added. “It harms the public’s ability to hold the government accountable.”
The issue centers on the Privacy Protection Act of 1980, which generally bans warrants to search for and seize news gathering materials. But the law contains an exception for cases in which reporters themselves are criminal suspects.
In 2009, Mr. Rosen reported on North Korea’s plans for a nuclear test. The Justice Department opened a leak investigation and eventually prosecuted a State Department contractor, Stephen Jin-Woo Kim. (In 2014, Mr. Kim pleaded guilty to making an unauthorized disclosure of restricted information and was sentenced to 13 months in prison.)
It was vanishingly rare in the 20th century for the Justice Department to bring criminal charges in a leak case. But it started to become common midway through the George W. Bush administration and under Mr. Holder’s watch, the number continued to soar.
Then, in May 2013, it came to light that investigators had seized two months of Associated Press phone records and that they had portrayed Mr. Rosen’s reporting for Fox News as criminal in a search warrant application, raising the prospect of an unprecedented prosecution of a reporter for publishing information.
In seeking a warrant to gain access to Mr. Rosen’s emails at Google, an F.B.I. agent told a judge that “there is probable cause to believe that the reporter has committed or is committing a violation” of the Espionage Act — which criminalizes the unauthorized disclosure of sensitive national security information — “as an aider and abettor and/or co-conspirator” of his source.
Critics across party lines expressed concerns that the Justice Department was going too far in its crackdown on leaks, and some lawmakers also accused Mr. Holder of having misled Congress in earlier testimony in which he said he opposed that idea and had never been involved in or heard discussions about any such potential prosecution.
Justice Department officials countered that they never actually intended to prosecute Mr. Rosen, and had only portrayed him as a criminal suspect to invoke the exemption to the 1980 statute. Critics said the defense essentially amounted to an admission that the department had gamed the law in bad faith.
“That tactic circumvents the clear intent of the Privacy Protection Act,” Mr. Rottman said. “The law is meant to ensure that government can’t seek search warrants for a journalist’s records or unpublished stories unless it has probable cause to believe the journalist has actually done something really wrong.”
In response to the broader furor, President Obama ordered a review of procedures for leak investigations, saying he was “troubled” that investigative reporting could be stifled. Mr. Holder repeatedly met with news media leaders, acknowledging criticism that the Justice Department had tipped too far toward aggressive law enforcement.
He developed new guidelines for leak investigations. Those included forbidding portraying reporters as co-conspirators in criminal leaks simply to circumvent the legal bar on secret search warrants for their reporting materials. His regulation said investigators could only invoke the exemption to the 1980 law if a reporter was officially under investigation.
Those rules stayed in place until early in the Biden administration, when it came to light that under the Trump administration, the Justice Department had seized the communications records of reporters at The New York Times, The Washington Post and CNN.
President Biden ordered prosecutors to stop seizing reporters’ phone and email data. Mr. Garland established a regulation barring the Justice Department from using “compulsory legal process for the purpose of obtaining information from or records of members of the news media acting within the scope of news gathering, except in limited circumstances.”
Last year, the House unanimously passed a bipartisan bill to strengthen the ability of reporters to protect confidential sources. But it died in the Senate after Mr. Trump instructed Republicans to “kill this bill.”
