Journalists Dissatisfied with Holder's Vague Assurances on Prosecuting Reporters

A group of prominent journalists -- including former Washington Post executive editor Len Downie -- met yesterday with U.S. Attorney General Eric Holder but walked away from the meeting disappointed that the Obama administration's top cop won't amend vague Justice Department guidelines which, they argue, make it far too easy for the administration to hound a reporter with the threat of criminal prosecution for protecting his or her sources in a leak investigation.

Yet in covering the story, Post editors shoved Paul Farhi's reporting on the matter to the front page of Style, rather than the A-section, and slapped on a yawn-inducing headline guaranteed to entice only the wonkiest of readers: "Media group, Holder meet on leak cases." "U.S. rules on warrants and subpoenas targeting reporters are challenged," noted the subheader. According to Farhi, the group of journalists want to see DOJ policy amended so that the attorney general must personally get involved in a subpoena request for a journalist's records (emphasis mine):

What is ordinary about “ordinary newsgathering”?

That question was at the heart of discussions Tuesday between Attorney General Eric H. Holder Jr. and a group of media representatives over rules that guide federal prosecutors in their pursuit of leaks of classified information.


Tuesday’s discussions were about the circumstances under which the attorney general is required to authorize a subpoena to seek records from a news organization.

The group of journalists — which included Leonard Downie Jr., former executive editor of The Washington Post, and Bill Keller, former executive editor of the New York Times wants the attorney general to be the official to approve all subpoenas aimed at news organizations, instead of deferring such authorization to lower-ranking officials. The intent is to create maximum accountability for any federal investigation into journalists’ activities.

The discussion focused significantly on a key word: Ordinary.

The department’s rules say that the attorney general’s authorization is not necessary for subpoenas that seek information related to “ordinary newsgathering activities.”

The journalists, however, countered that the vague term gave the government too much discretion to determine what was “ordinary” journalistic practice and what was unusual. They want the term stricken from the policy.

The use of that term “surprised and alarmed” the journalists, Downie said. One of his colleagues at the meeting called the word “a loophole the government could drive a truck through” — because the adjective would give the government great latitude to issue subpoenas without the attorney general’s authorization.

A Justice official said that the media representatives made some “compelling points” and agreed to take their arguments into consideration. But he said the officials did not commit to changing their rules.

The official, who spoke on the condition of anonymity, said there would be further discussions with lawyers representing news organizations, including the Reporters Committee for Freedom of the Press.

As Farhi also reminded readers, these meetings between DOJ officials and prominent journalists:

grew out of objections by news organizations that prosecutors overreached in 2012 when they secretly subpoenaed and seized the phone records of Associated Press reporters to discover their sources for a story that disclosed that the CIA, in a secret operation earlier that year, foiled a terrorist plot in Yemen.

Media Business Washington Post Obama Watch Government & Press Len Downie Paul Farhi Eric Holder