Amidst the widespread journalistic euphoria for AG Garland's recently announced restrictions on the use of compulsory process to obtain info from the media, I have a few nits to pick:
1. As a general matter, it is not entirely clear how the AG memo substantively differs from /1
1. As a general matter, it is not entirely clear how the AG memo substantively differs from /1
https://twitter.com/charlie_savage/status/1417159823045664772
the current content of 28 CFR §50.10 which sets out DoJ policies in pursuing info from members of the news media.
2. Section 50.10 specifically includes, as a factor in the balancing test referenced in Garland's memo, the need to safeguard "the essential role of the free /2
2. Section 50.10 specifically includes, as a factor in the balancing test referenced in Garland's memo, the need to safeguard "the essential role of the free /2
press in fostering government accountability and an open society."
3. Section 50.10 already requires AG approval for a §2703(d) or 3123 subpoena seeking records of electronic communications, the most intrusive form of search short of a search of person or residence /3
3. Section 50.10 already requires AG approval for a §2703(d) or 3123 subpoena seeking records of electronic communications, the most intrusive form of search short of a search of person or residence /3
4. So, it isn't immediately obvious to me what Garland believes he is giving the media that isn't already found in Section 50.10.
5. OTOH, Section 3(b) of Garland's memo is troubling and poorly drafted. It broadly prohibits the use of compulsory process where a member /4
5. OTOH, Section 3(b) of Garland's memo is troubling and poorly drafted. It broadly prohibits the use of compulsory process where a member /4
of the news media has, "in the course of newsgathering, only possessed or published government information, including classified information." The prohibition makes no exception for 18 USC § 798 where the essence of one of the statutorily proscribed violations /5
IS PUBLISHING classified information "concerning the communications intelligence activities of the US or any foreign government." In other words, Garland has abandoned the use of the government's most powerful investigative tools with respect to investigations of a /6
congressional law that specifically criminalizes the PUBLICATION of a type of classified information deemed uniquely vital but vulnerable; i.e., communications intelligence activities. This should be corrected, if carelessly unintentional, or reconsidered, if deliberately /7
omitted. If maintained, Garland has essentially neutered investigations of the unauthorized disclosure of the types of classified information identified in 18 USC §798.
6. Lastly, Garland appears to lend open support to a federal "shield law" which is the Holy Grail of /8
6. Lastly, Garland appears to lend open support to a federal "shield law" which is the Holy Grail of /8
journalists. Why? No shield law is required by the First Amendment and, IMO, 28 CFR §50.10 affords ample protection for legitimate journalistic activities. For those how have long insisted that the absence of a federal shield law hampers journalism, I note that /9
journalists continue to operate robustly in each of the 10 states that lack any sort of shield law. IMO, the current construct of constitutional and regulatory protection strikes the right balance between the First Amendment and national security. /END
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