The Trump Administration has changed the U.S. Department of Justice's (DOJ) guidelines on gathering evidence from the news media. The new policy gives greater discretion to investigators to seek information and evidence from journalists. This change is a reversal from the DOJ's position during the Biden Administration, which adopted a policy designed to ensure journalists' work was not impaired.
On May 2, Attorney General Pam Bondi issued a new rule loosening the guidelines by which the Department of Justice (DOJ) can obtain information from the news media. The new policy retains some long-standing safeguards for the press but appears to expand the types of information whose publication could trigger a DOJ investigation beyond classified material to include "sensitive" information or even non-sensitive information the Trump Administration believes has been leaked.
The DOJ regulations, which various administrations have revised, set forth the criteria and process for the department's use of subpoenas, search warrants, and court orders to obtain information and materials from the news media, including journalists and publishers. The rules govern the questioning, arresting, and charging of members of the news media, as well as seeking materials such as phone records and information from third parties such as providers of email and internet service.
The New DOJ Policy
According to the new policy's statement of principles, the Attorney General determined that the previous policy struck "the wrong balance" and "unduly hindered the [DOJ's] efforts to subpoena journalists who have coordinated with federal employees to leak protected materials" such as "classified, privileged, and other sensitive information."
The policy emphasizes that there are no "special protections" for journalists and publishers who come under criminal investigation for conduct outside of "lawful newsgathering activities." The use of the modifier "lawful" is new to the 2025 policy, and "lawful newsgathering" is not defined. In her memo to DOJ staff accompanying the new policy, Bondi said the DOJ "will not tolerate unauthorized disclosures that undermine President Trump's policies, victimize government agencies, and cause harm to the American people," signaling that a wide range of leaked information could spark an investigation.
Another notable change is that the policy now references journalists' business records, which are defined as "records of the activities, including the financial transactions, of a member of the news media related to the coverage, investigation, or reporting of news . . . generated or maintained by a third party with which the member of the news media has a contractual relationship. . . [and] that could provide information about the newsgathering techniques or sources of a member of the news media."
When determining whether to seek information from members of the news media, the DOJ will now take a balancing approach that considers national security, public safety, law enforcement and "the fair administration of justice," along with the role of the free press "in fostering government accountability and an open society."
However, the use of subpoenas, search warrants, and court orders to obtain information or records from non-consenting members of the news media are still considered "extraordinary measures, not standard investigatory practices."
Thus, the DOJ must still overcome certain hurdles to obtain records and information from journalists and publishers, including:
- Authorization of the Attorney General. The DOJ must obtain the authorization of the Attorney General prior to issuing a subpoena to a member of the media (or a third party for their communications or business records). There is an exception if the journalist consents to provide the information. Another exception is when the material sought is "unrelated to lawful newsgathering activities" such as when the journalist is a perpetrator, victim, or witness to a crime—in which case, authorization of a Deputy Assistant Attorney General for the Criminal Division is generally required. In any event, the subpoena should be narrowly drawn, and not seek nonessential, cumulative, or speculative information. The DOJ also requires express authorization of the Attorney General to question a journalist or publisher about an offense that they are suspected of committing in the course of coverage or investigation of news. Even if the news media member is not the subject of the investigation and the DOJ has no intent to prosecute them, the Attorney General must still authorize questioning. Additionally, the DOJ must have the Attorney General's authorization to seek a warrant for arrest, conduct an arrest, or seek a bill of indictment of a journalist or publisher for any offense arising from their coverage or investigation of news.
- Attempts to obtain the information from alternative sources and negotiate with the news media. Under the new policy, the government must attempt to obtain the material from alternative sources prior to the issuance of a subpoena. The government should also attempt to negotiate with the journalist or publisher, unless "such negotiations would pose a substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm."
- Providing the news media with notice prior to issuing the subpoena. The policy requires the DOJ to provide a news media member with reasonable and timely notice of the Attorney General's authorization of a subpoena. There is an exception if such notice would "pose a substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm." However, the potential for the media to seek judicial review is not a compelling reason to delay notice.
How Does the New Policy Differ from the Past?
The new policy returns to the balancing approach abandoned by former Attorney General Merrick Garland in 2021 in favor of a rule (formally issued in 2022) that prevented the DOJ from compelling journalists to produce information other than in tightly limited circumstances. The 2022 policy emphasized the importance of protecting the news media from law enforcement actions that might unreasonably impair newsgathering.
The limited circumstances were:
- to authenticate evidence that had already been published.
- if the media representative agreed to provide the material or consented to a third party providing the records or
- when necessary to prevent an imminent risk of death or serious bodily harm such as a terrorist attack, kidnapping, or impairment of infrastructure.
In every case, the DOJ had to get approval from the Attorney General, exhaust other methods of obtaining the information, and provide notice to the journalist or news organization.
What's Next?
The DOJ's priorities have shifted away from protecting newsgathering. Officials' future actions will provide insight into the federal government's intended level of enforcement of the new policy and adherence to its restrictions. At the state level, many jurisdictions have shield laws that protect the confidential relationship between journalists and their sources.
In the meantime, media companies should ensure that their journalists are trained in the best practices for receiving information, and reporters should ensure that they use secure methods, such as encryption, to communicate with sources.
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