On April 25, Attorney General Pam Bondi issued a memorandum updating Department of Justice (DOJ) policy for "obtaining information from, or records of, members of the news media" (Bondi Memorandum). Emphasizing that "this Justice Department will not tolerate unauthorized disclosures that undermine President Trump's policies, victimize government agencies, and cause harm to the American people," the Bondi Memorandum rescinds DOJ regulations issued under former Attorney General Merrick Garland in 2022 generally prohibiting the use of compulsory legal process to obtain information from, or records of, the news media acting within the scope of newsgathering (2022 regulations). The Bondi Memorandum also directs DOJ's Office of Legal Policy to publish new regulatory language to reflect this policy change in 28 CFR § 50.10.
The new rules will permit DOJ to use compulsory process in leak investigations to obtain information from, or records of, members of the media to identify who has leaked government information to the media. In 2022, DOJ had narrowed substantially the circumstances under which it would use legal process to compel a member of the news media to provide information when he/she was acting within the scope of newsgathering—limiting it to narrow circumstances, including wherein the news media provided consent and to prevent imminent risk of death or seriously bodily harm. The Bondi Memorandum rescinds these limitations so that DOJ can now seek records and testimony from members of the news media, or records of such members of the news media, "in order to identify and punish the source of improper leaks." The Bondi Memorandum points to procedural safeguards that it intends to impose on the use of such legal process, and states that it regards this use of process as extraordinary.
While the new DOJ regulations have not been issued—a process that could take weeks or months—Attorney General Bondi's four-page directive will take immediate effect. These rule changes are considered internal DOJ policy and thus do not require notice and comment or delayed implementation under the Administrative Procedure Act. Meanwhile, it remains to be seen what safeguards will ultimately be written into the new regulations. But in all cases, if and how DOJ adheres to or deviates from such self-imposed procedures will be a strictly internal DOJ matter. Neither the regulations nor DOJ's adherence to them will be subject to judicial review.
This alert summarizes notable areas of apparent significant policy change based on the Bondi Memorandum and analyzes what this change could mean for journalists and media organizations interacting with government officials, as well as online service providers, telecommunications providers, and others who may hold records of members of the news media.
Key Takeaways
1.Prosecuting leakers will be a major priority for this DOJ.
The Bondi Memorandum emphasizes that government leaks of information prompted this change in policy. In doing so, it relies heavily on quotes from President Trump's April 9 Memorandum titled "Addressing Risks Associated with an Egregious Leaker and Disseminator of Falsehoods," which characterized actions of a former Trump Administration official as "treasonous" and likely violative of the Espionage Act. The memorandum singles out unauthorized disclosures "that undermine President Trump's policies," suggesting (1) that the effort to prosecute leakers is a priority for the president in particular, and (2) leak investigations and prosecutions may go beyond national defense or classified information (as discussed further below). Public reporting suggests that the Federal Bureau of Investigation has begun administering polygraphs to identify the source of leaks in recent weeks. We can thus reasonably anticipate an uptick in efforts to investigate and prosecute leakers in this Administration—and more aggressive uses of compulsory process to enable those prosecutions—though that will likely be countered by the traditional difficulties encountered in bringing to fruition leak investigations.
2. DOJ may focus on leaks of government information, regardless of whether it is classified.
The Bondi Memorandum does not articulate the kinds of leaks it will prioritize; however, its focus on "sensitive information" could mean that it will extend its sights beyond leaks of classified information. There are several ways it could do this. Notably, no single statute criminalizes all unauthorized disclosure of protected government information. While DOJ has relied principally on the Espionage Act—which prohibits certain activities related to gathering, receiving, or transmitting "national defense information" to one not entitled to receive it—to prosecute leakers (a phrase not explicitly limited to classified information), other criminal statutes might be read to have an even broader scope.
3. News organizations may benefit from self-imposed DOJ procedural safeguards, but not as many as in the past.
Acknowledging that "a free and independent press is vital," the Bondi Memorandum states that the department will "continue to employ procedural protections to limit the use of compulsory legal process to obtain information from or records of members of the news media, which include enhanced approval and advance-notice procedures." It is not clear at this time what those procedural protections will include—specifically, whether DOJ will employ any protections from the 2022 regulations, resurrect the balancing test that predated it, or forge a new approach entirely. The Bondi Memorandum nonetheless states that members of the news media will be "presumptively entitled to advance notice" of investigative activities; subpoenas must be "narrowly drawn"; and warrants must "include protocols designed to limit the scope of intrusion into potentially protected materials or newsgathering activities." It also implies that the attorney general will have a direct role in approving certain activities implicating the news media and that the attorney general will consider whether prosecutors have "made all reasonable attempts to obtain the information from alternative sources" and "pursued negotiations with affected members of the news media." The attorney general must also approve efforts to "question or arrest members of the news media."
As noted above, however, any such procedural safeguards are self-imposed and internal (and, therefore, not visible to the public), and so will not be enforceable in court.
4.The news media are the target of this updated policy, but they do not currently appear to be the target for criminal leak enforcement; how DOJ revises the definition of "newsgathering" will further illuminate its enforcement plans.
The Bondi Memorandum explicitly identifies the prosecution of government leakers as its animating focus, rather than the media organizations that publish their materials. Indeed, it states that a free and independent press "is vital to the functioning of our democracy." At the same time, it is not clear how the Trump Administration will define "newsgathering" under its new rules. Under the 2022 regulations, newsgathering was defined very broadly as "the process by which a member of the news media collects, pursues, or obtains information or records for the purposes of producing content intended for public dissemination—including the mere receipt, possession, or publication by a member of the news media of government information, including classified information, as well as establishing a means of receiving such information, including from an anonymous or confidential source." This DOJ may adopt a different, potentially narrower, definition of "newsgathering" or "media members." At a minimum, this DOJ will likely be forced to grapple with the challenges associated with that definition in an era of self-publishing online and a wide (and evolving) array of types of newer media organizations. In addition, DOJ's revised definition of "newsgathering" (which has not yet been released) could provide insight into whether and how criminal enforcement could evolve.
5. It is not clear what the new rules will be regarding nondisclosure orders.
The 2022 regulations included important guardrails mandating notice to members of the media when they were subject to compulsory process and strict limits on the use of nondisclosure orders that would prevent, for instance, an online service provider or telecommunications company from telling a journalist about a subpoena for his/her email or telephone records. The Bondi Memorandum is largely silent on whether these same protections will persist, or whether there will be any requirements to use filter protocols when the compulsory legal process relates to a member of the news media acting within the scope of newsgathering to minimize the potential intrusion into newsgathering-related materials unrelated to the conduct under investigation.
6. The Bondi Memorandum does not provide at this time for required external engagement as part of the rulemaking process.
When former Attorney General Garland issued a memorandum prohibiting the use of compulsory legal process to obtain information or records from the news media acting within the scope of "newsgathering activities" in July 2021, he also directed then-Deputy Attorney General Lisa Monaco to "explain, develop, and codify the above protections in regulations," after consulting with relevant internal and external stakeholders." This process took over a year before the final regulations were issued. By contrast, the Bondi Memorandum directs the Office of Legal Policy to develop these regulations—without necessarily consulting any external stakeholders regarding their potential impact.
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Ultimately, the Bondi Memorandum previews a more aggressive posture toward leak investigations and, in particular, DOJ's intention to obtain information in support of those investigations directly from news organizations or from records about news media activities (e.g., telephone calls and emails). This has consequences for individual members of the press, media organizations, and all who interact with or provide communication services to them, including online service providers and telecommunications companies.
WilmerHale has extensive experience advising media organizations in leak investigations and litigating First Amendment cases and is well poised to advise clients on:
- Responsible journalistic practices, including lawful safeguarding of information obtained in the course of newsgathering activities.
- Responses to DOJ inquiries regarding leak investigations.
- Responses to service of lawful process in the context of leak investigations.
- Likely trends and trajectories for leak investigations.
- Strategies and approaches for online service providers, telecommunications companies, and others who frequently provide services to the media or otherwise interact with them.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
