New rules on investigating reporters present a risky test

It remains to be seen whether a new U.S. Justice Department policy on journalists’ privacy rights will be a simple impediment to reporting sensitive stories about the government or a chilling sign of the Trump administration’s intent to use threats and punishment to deter stories it doesn’t like.

But it’s an issue worth watching.

Not just for journalists who may resent or resist outside interference with their ability to do their jobs, but also for you, the public, who may suffer the consequences when government bureaucrats and elected officials control access to information about what they do.

The issue itself is a longstanding procedural tug-of-war over how much authority the government should have when investigating embarrassing reports about activities or statements made behind closed doors. Such reports have been a thorn in the side of government officials since the very beginning of tolerance of a free press. Over time, even the most grudging leaders have come to accept that, without wide leeway for journalists who report stories that may come from secret documents or anonymous sources, the public will be prevented from learning about events or issues that are critical to their understanding of their government and to their ability to manage it democratically.

That said, many of those grudging authorities have tested the limits of how far they can go to restrict or prevent reporting they believe interferes with their effectiveness or simply makes them look bad. During the first quarter of the 21st century, presidential administrations from both parties, with one exception, have aggressively pursued court action to identify and prosecute news leaks. And that exception, Joe Biden, in contrast with the Donald Trump administration’s open hostility toward the press, is probably a major reason the new Justice Department policy is making so many of us nervous.

The new policy was announced last week by Attorney General Pamela Bondi, who rescinded rules established by her predecessor, Merrick Garland, barring prosecutors from seizing reporters’ notes or records. Free press advocates rushed to condemn Bondi’s move, which intentionally or not, followed major controversies over leaked reports about Secretary of Defense Pete Hegseth’s use of a non-secure communications app to discuss confidential war plans.

A representative of the Committee to Protect Journalists, told Newsweek, “The Justice Department's decision to rescind guidelines that protected against the seizure of journalist's phone records and other reporting material is a blow to press freedom in the United States.” A representative of the Reporters Committee for Freedom of the Press, told The Associated Press, “Some of the most consequential reporting in U.S. history — from Watergate to warrantless wiretapping after 9/11 — was and continues to be made possible because reporters have been able to protect the identities of confidential sources and uncover and report stories that matter to people across the political spectrum.”

As annoying as it may be to Secretary Hegseth or others in the Trump administration, it is surely in the public’s interest to know whether the communications practices of his department are sound and, specifically, to know that their top defense authority is using an insecure platform to discuss sensitive war plans — not to mention that his department accidentally included a journalist in one chat and Hegseth family members in another. Revelations like these alone indicate the value of such reporting, and countless examples tracing back to Watergate and before have demonstrated a similar urgency.

Although every state but Wyoming has enacted shield laws intended to protect reporters who legally acquire and report sensitive information, there is unfortunately no similar protection at the federal level. A federal shield law won unanimous approval in the U.S. House in the final year of the Biden administration but died in the Senate and is unlikely to be resuscitated now.

That leaves us journalists, and you in the public, to deal with the vicissitudes of policy from administration to administration and, in the current circumstance, to trust in the integrity of Bondi’s promise that her department will “limit the scope of intrusion into potentially protected materials or newsgathering activities” and “recognize that investigative techniques relating to newsgathering are an extraordinary measure to be deployed as a last resort.”

Considering the stakes and the tenor of our times, this is a difficult, and risky, test of faith.

• Jim Slusher, jslusher@dailyherald.com, is managing editor for opinion at the Daily Herald. Follow him on Facebook at www.facebook.com/jim.slusher1 and on X at @JimSlusher. His new book “Conversations, community and the role of the local newspaper” is available at eckhartzpress.com.