Thread by @GeorgeCroner

Bravo, @DavidLaufmanLaw. A voice of reason. 🧵

The subpoenaing of reporters has been much in the news with many media organizations lauding the Biden Administration’s statement that issuing subpoenas for the records of reporters in leak investigations is not consistent with 1

https://twitter.com/DavidLaufmanLaw/status/1401292033797640192

the President’s policy as provided to DoJ. If this statement means the Administration has ruled out subpoenaing reporters under any circumstances in any leak investigation, this is, frankly, contrary to existing DoJ regulations developed and implemented during the Obama, not 2

the Trump, Administration.

A basic principle of the American judicial system is that the public has a right to every man’s evidence. No blanket exception exists for media members or newsgathering activities. Notably, there is no federal shield law protecting newsgathering 3

activities, so the use of subpoenas and other compulsory law enforcement measures has been, and should continue to be, a function of exercising prudent prosecutorial judgment.

The carefully constructed standards for the use of compulsory process with respect to the media 4

are found in regulatory guidance promulgated at 28 CFR §50.10, with further elaboration provided at §9-13.400 of the Justice Manual. These procedures clarify that the use of subpoenas and other “extraordinary” law enforcement measures must be approved by the Attorney General 5

and are to be employed only where all reasonable efforts to obtain the information have been exhausted.

These provisions embody sensible standards that recognize the First Amendment implications attending the use of compulsory process with respect to the media. The problems 6

that precipitated the Biden Administration’s recent statement are the product of an exercise of flawed prosecutorial judgment by a previous administration with little respect for the rule of law, and a noted antipathy for the rights of a free press. In my opinion, however, 7

the failures of that administration should not serve as a basis for abrogating the perfectly appropriate standards found in 28 CFR §50.10 and the Justice Manual. Thus, if the intent of the Biden Administration’s statement is, in fact, to convey a policy that prophylactically 8

bans the use of all compulsory process with respect to the media in leak investigations, that is, in my view, a flawed overcorrection to the mistakes of the previous administration. END