US Justice Department rescinds Biden-era protections for press

Editor’s note: This analysis was updated on May 2 to reflect the Justice Department’s revised regulation published on May 1.

On April 25, Attorney General Pam Bondi issued a memorandum to all U.S. Department of Justice employees titled “Updated Policy Regarding Obtaining Information From, or Records of, Members of the News Media.” The memo outlines changes to the internal policy at DOJ, often known as the “news media guidelines” and codified at 28 U.S.C. § 50.10, that governs the use of subpoenas, court orders, and search warrants targeting journalists or their third-party communications or other service providers. The guidelines do not carry the force of law and are voluntarily adopted but are a crucial protection for a free press in the United States.

On May 1, the Justice Department published the revised 50.10 regulation. The analysis below explains how the revised regulation could impact the press, especially in cases involving the unauthorized disclosure of government information to the media, colloquially known as “leaks.”

The first paragraph of the Bondi memo describes the changes as follows:

Safeguarding classified, privileged, and other sensitive information is essential to effective governance and law enforcement. Federal government employees intentionally leaking sensitive information to the media undermines the ability of the Department of Justice to uphold the rule of law, protect civil rights, and keep America safe. This conduct is illegal and wrong, and it must stop. Therefore, I have concluded that it is necessary to rescind Merrick Garland’s policies precluding the Department of Justice from seeking records and compelling testimony from members of the news media in order to identify and punish the source of improper leaks. I am also directing the Office of Legal Policy to publish new regulatory language in 28 C.F.R. § 50.10 to reflect the rescission of those policies.

The text of the revised regulation confirms that Bondi has rescinded the reforms implemented by former Attorney General Merrick Garland in a 2021 memo and the 2022 rewrite of the 50.10 guidelines. This includes the bright-line rule barring compulsory process against journalists acting within the “scope of newsgathering,” as defined and subject only to very narrow exceptions. It also includes one of the most important protections in the Garland reforms, especially for national security reporting — defining “newsgathering” to include the “receipt, possession, or publication” of government information, including classified material.

And the regulation confirms that the guidelines have largely reverted to the version of the guidelines in place before the Garland revisions in 2022, which incorporates certain reforms implemented by former Attorney General Eric Holder in 2014 and 2015.

In the analysis below, we offer several observations on the revised regulation. 

In short, the rescission of the Garland regulation and reversion to the previous version gives the Justice Department greater powers to hunt for leakers of both classified and unclassified information, including through the use of investigative authorities to demand sensitive records from or of journalists. By their nature, leak investigations chill newsgathering and reporting in the public interest. We hope that these changes prompt lawmakers to reintroduce federal shield legislation that would provide essential protections for journalists and the public’s right to know.

The regulation does not eliminate all protections

Prior to the 2021 Garland memorandum and its bright-line rule, the news media guidelines applied a balancing test, where the Justice Department would weigh law enforcement equities against what it perceived to be the press freedom implications. If the balance tipped in favor of DOJ, the attorney general could authorize department attorneys to pursue compulsory legal process for testimony or records from journalists or for material from third-party communications and other service providers. The Bondi memo and accompanying regulation revert to that balancing test. See 28 C.F.R. § 50.10(a)(2) (2025) (requiring that DOJ balance “protecting national security, ensuring public safety, promoting effective law enforcement and the fair administration of justice, and safeguarding the essential role of the free press in fostering Government accountability and an open society”).

To guide that balancing, the regulations have historically implemented three primary guardrails to deter overreach, which are retained in the Bondi revisions. 

First, most requests for compulsory process involving journalists and news organizations have to be approved personally by the attorney general. The exceptions are for subpoenas or court orders seeking records or testimony not implicating newsgathering (purely administrative records, for instance), or when the affected news organization or journalist agrees to comply.[1] 28 C.F.R. § 50.10(c)(3) (2025). Attorney general approval is also required for questioning, arresting, or charging journalists. 28 C.F.R. § 50.10(f) (2025).

Second, members of the department have to first make “all reasonable attempts” to secure the material or information sought from non-media sources. 28 C.F.R. § 50.10(c)(4)(ii) (2025). This is often referred to as an “exhaustion” requirement.

And, third, the regulation requires notice to the affected journalist or news organization, which is essential to permit either negotiation over the scope of the government demand or a court challenge. 28 C.F.R. § 50.10(c)(4)(iii), (e) (2025).

Note that prior to the revisions by Attorney General Holder in the mid-2010s, the guidelines adopted a presumption against prior notice, meaning that the attorney general had to determine that advanced notice would not cause certain harms before permitting notice. 

Following a major controversy in 2013 over a sweeping, delayed-notice subpoena for Associated Press phone records in a national security leak case, the Holder Justice Department flipped this presumption to require notice prior to enforcement unless the attorney general determined, for compelling reasons, that notice would pose a “clear and substantial threat to the integrity of an investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm.” 28 C.F.R. § 50.10(a)(3), (e)(2)(i) (2016). The presumption in favor of advanced notice is a crucial protection because, once the compulsory process is issued and enforced, the “bell has rung,” meaning that the government has accessed the information sought and there is little an affected journalist or news organization can do.

By largely reverting to the pre-2022 regulation, the Bondi revisions maintain these guardrails, including presumptive advance notice.

The memo and regulation appear to envision investigations into leaks of non-classified information

A significant portion of the Bondi memo is dedicated to decrying unauthorized disclosures of government information broadly, not just classified information. This would include information where a leak to the press normally would not, and certainly should not, be considered a criminal matter by the department. For instance, on page 2 the memo states: “This Justice Department will not tolerate unauthorized disclosures that undermine President Trump’s policies, victimize government agencies, and cause harm to the American people.” 

On pages 2 and 3, the memo also quotes the presidential memorandum from April 9, 2025, which says that when a government employee “improperly discloses sensitive information for the purposes of personal enrichment and undermining our foreign policy, national security, and Government effectiveness … this conduct could properly be characterized as treasonous.” 

And, on page 3, the Bondi memo states that “[a]ccountability, including criminal prosecutions, is necessary to set a new course” to counter the “perpetrators of these leaks” who “aid our foreign adversaries by spilling sensitive and sometimes classified information on to the Internet” (emphasis added).

And, while the text of the regulation does not reference leak cases other than investigations into the unauthorized disclosure of national defense information, see 28 C.F.R. § 50.10(c)(4)(iv) (2025), the summary and supplemental information in the regulation does reference concerns more broadly. 

In the summary, for instance, the department writes that “after several years” under the Garland policy, “the Department has concluded that the current policy strikes the wrong balance, undermining the Department’s ability to safeguard classified, privileged, and other sensitive information.” The “discussion” in the revised regulation likewise references “protected material” more broadly:

Since the promulgation of [the previous] regulations, there have been growing concerns about Federal government employees intentionally disseminating confidential, privileged, or otherwise protected information to the media for the purpose of undermining Executive agencies’ legal obligations and policies. The Attorney General has determined that the constraints imposed by the 2022 amendments to 28 C.F.R. 50.10 have unduly hindered the Department’s efforts to subpoena journalists who have coordinated with Federal employees to leak protected materials. Accordingly, the Attorney General has revoked the 2021 AG Memo and is issuing regulations that will allow the Department of Justice to better safeguard the security of protected government information.

It is notable that the memo and revised regulation appear to contemplate criminal investigations and prosecutions for the unauthorized disclosure of information that is not classified but could be perceived as unfavorable to the administration. It is additionally troubling to see the memo quote President Trump’s presidential memorandum referring to certain leaks as “treasonous,” given that “treason” is one of the most severe crimes in the U.S. Code. It is a capital offense, rarely prosecuted, and requires proof of specific intent to betray the United States (as well as testimony of two witnesses describing the same act or a confession). See 18 U.S.C. § 2381.

The only disclosures of government information to the press that have been criminally pursued by the Justice Department have involved leaks of national defense information and two cases during the first Trump administration under bank secrecy laws. See Reporters Comm. for Freedom of the Press, Federal Cases Involving Unauthorized Disclosures to the News Media, 1778 to the Present. 

If the memo and regulation portend the broad criminal pursuit of non-classified disclosures to the press, that is of acute concern. Criminal investigations into and prosecutions of press leaks can stanch the free flow of information to the public, especially in cases where the public needs that information to hold the government accountable.

Impact on the Privacy Protection Act

One discrete issue raised by the memorandum and regulation is how they may impact Justice Department compliance with the Privacy Protection Act of 1980, a federal law that provides a civil remedy for the improper use of search warrants to obtain journalistic work product or documentary material. See 42 U.S.C. §§ 2000aa, 2000aa-5 to 2000aa-7.

“Work product” is defined as material that includes the “mental impressions, conclusions, opinions, or theories” of someone who intends to communicate that material to the public. 42 U.S.C. § 2000aa-7(b). “Documentary materials” means materials “upon which information is recorded.” An example of the former would be a news article in progress. An example of the latter would be raw photographs.

Unless an exception applies, work product cannot be seized even with a warrant. Documentary materials must be pursued with a subpoena first before authorities can seek a warrant. In both cases, however, if authorities have probable cause that the journalist has committed a crime, they can invoke what is known as the “suspect exception” to the PPA to obtain a warrant.

Importantly, the suspect exception does not apply if the offense relates to the “receipt, possession, communication, or withholding” of the material. For instance, if a government source steals the material and then passes it on to the journalist, the suspect exception would not permit a warrant based on probable cause that the journalist has received stolen material.

The PPA does allow, however, warrants when a journalist has received, possessed, communicated, or withheld information in a manner that could be characterized by the department as a violation of laws covering national security leaks, including the Espionage Act and the Atomic Energy Act. 

That issue was at the center of another major controversy during the Obama administration that led to Attorney General Holder revising the guidelines, where the department argued that soliciting a leak of classified information constitutes conspiracy to violate or aiding and abetting a violation of the Espionage Act. 

In 2013, it came to light that, in 2010, an FBI agent had sworn out an affidavit that characterized efforts by James Rosen, then a Fox News correspondent, to encourage a source at the U.S. State Department to disclose classified information as an Espionage Act violation under either a conspiracy or aiding and abetting theory. A judge issued a warrant based on that affidavit for two days of Rosen’s Gmail content. Importantly, the affidavit focused on the fact that Rosen had allegedly “asked, solicited and encouraged [the defendant] to disclose sensitive United States internal documents and intelligence information.” In other words, the affidavit did not allege a violation of the Espionage Act based on receipt, possession, communication, or withholding of the information alone.

What’s key here is that the FBI had to characterize Rosen as a co-conspirator or aider-and-abettor in order to trigger the suspect exception in the PPA to get the warrant, but it never intended to actually prosecute Rosen for the crime.

In response to that concern, the Holder revisions to the guidelines included a specific provision to prevent the Rosen fact pattern from recurring. The Holder guidelines barred DOJ from invoking the suspect exception to the PPA if the “sole purpose is to further the investigation of a person other than the member of the news media.” 28 C.F.R. § 50.10(d)(5) (2016). In other words, if DOJ is going to seek a warrant to compel the production of work product or documentary material under the PPA’s suspect exception, prosecutors need to have some good faith intent to prosecute the journalist. 

The revised regulation deletes this “sole purpose” language entirely. While we hope that this protection will be included in the Justice Manual, the deletion raises concerns that the department could seek search warrants under a legal theory similar to that in the Rosen matter.

Gag orders

In 2021, reporting revealed that the Justice Department, in the last year of the first Trump administration, had authorized subpoenas and court orders to compel the production of phone and email records relating to eight reporters across three news outlets: CNN, The New York Times, and The Washington Post. All were in connection with national security leak cases. In both the CNN and New York Times cases, DOJ had sought and obtained “non-disclosure orders” that ultimately had the effect of gagging the newsroom lawyers from notifying the affected journalists.[2]

The Garland reforms to the guidelines included significant restrictions on these non-disclosure orders. For instance, for compulsory process that is issued based on one of the narrow exceptions for activities within the scope of newsgathering, the authorizing official had to determine that, for compelling reasons, notice would lead to one of the emergency risks, such as imminent harm to minors, that permitted process based on activities within the scope of newsgathering. See 28 C.F.R. § 50.10(k)(2) (2022). 

Similarly, for compulsory process that is permissible because it seeks non-newsgathering material like purely administrative records or information or records related to public comments on news websites, the authorizing official had to determine that, for compelling reasons, disclosure would pose a clear and substantial threat to the integrity of the investigation or those same emergency risks noted above. See id. § 50.10(k)(3).

The Bondi regulation deletes this language. It does, however, retain the requirement that an affected journalist or news organization who is not notified in advance of the issuance of compulsory process be notified no later than 90 days after “any return” from the records demand, which precludes the worst case scenario where the combination of a gag order on the third-party recipient of the process and indefinitely delayed notice means that the individual or entity never finds out their records have been seized.

Other changes from the Holder-era guidelines

A stronger notice requirement?

Under the Holder-era guidelines, the department was not required to provide notice to a journalist or news organization if the attorney general determined that the “member of the news media is a subject or target of an investigation relating to an offense committed in the course of, or arising out of, newsgathering activities. …” 28 C.F.R. § 50.10(e)(1)(i) (2016). The attorney general could nevertheless direct that notice be provided.

That passage is missing from the Bondi revisions. Subject to the discussion about “lawful” newsgathering directly below, it appears that the Bondi revisions apply the notice requirements in all cases.

New references to “lawful” newsgathering

Attorney General Holder actually released two revisions to the guidelines back in the mid-2010s because his first version drew criticism for appearing to only protect what it termed “ordinary” newsgathering. As The New York Times put it in an editorial in 2014: “The change by Mr. Holder and his aides could invite prosecutors in the future to claim that news gathering that entails the disclosure of classified information (as national security reporting typically does) is out of the ‘ordinary’ and, therefore, exempted from the guidelines.”

The revisions to the Holder language in the Bondi regulation appear to head in the same direction, but with the term “lawful” instead of “ordinary.” That is, in its statement of principles, the Bondi regulation says that it is “intended to provide protection to members of the news media from certain law enforcement tools, whether criminal or civil, that might unreasonably impair lawful newsgathering activities.” The Bondi regulation further states: “The policy is not intended to extend special protections to members of the news media who are the focus of criminal investigations for conduct not based on, or within the scope of, such activities” (emphasis added).

The concern here, which is similar to the James Rosen case discussed above, is that the department could decide that certain routine newsgathering activity — asking a source for information, for instance — could be characterized as conspiring in or aiding and abetting a criminal violation by the source. Were that to take the journalist out of the scope of the guidelines’ protections completely, it would effectively neuter the guidelines with respect to a vast amount of public interest journalism (and would eliminate whatever benefit there may be from the broader notice requirement discussed above).

The Garland revisions in 2022 did state that “newsgathering does not include criminal acts committed in the course of obtaining information or using information,” but, unlike the Bondi “lawful” formulation, the Garland revisions included specific language clarifying what the Department meant by “criminal acts.”

Deletion of the “safeguarding” section

The Holder regulation included a section on “safeguarding,” which required that information acquired pursuant to compulsory process issued to a journalist, news organization, or third party service provider be “closely held so as to prevent disclosure of the information to unauthorized persons or for improper purposes.”

The Bondi revision deletes that section entirely. The specifics of the safeguarding guidance, however, were largely contained in the Justice Manual, a guidebook for prosecutors. It will be necessary to review the revised Justice Manual section when it is published to determine if the deletion has any effect on how the guidelines work in practice.

Confirming availability of third-party process in national security leak investigations

The Holder revisions to the guidelines included a provision specific to investigations into the unauthorized disclosure of national defense information that required the agency reporting the leak to confirm the “significance of the harm” from the disclosure, that the material was properly classified, and that the agency supported the investigation and prosecution. 28 C.F.R. 50.10(c)(5)(v) (2016). The point of this requirement was in part to ensure that the affected agency would continue to cooperate with DOJ attorneys, given instances in the past where agencies — fearful that a criminal trial could expose other secrets — have withdrawn support for a prosecution.

It appears that the Bondi revisions confirm that the department is permitted to use subpoenas and court orders for communications or business records of journalists and news organizations from third parties in national security leak cases, which was ambiguous in the Holder guidelines.

Changes to provision governing questioning, arrests, and charging decisions

As noted above, by reverting back to the Holder-era guidelines, the Bondi regulation includes a requirement that the attorney general approve the questioning, arresting, or charging of a journalist. The Holder guidelines limited that requirement to instances where the suspected offense was committed “in the course of, or arising out of, newsgathering activities” (meaning that a journalist suspected of a garden-variety burglary could be questioned, arrested, or charged without AG approval). See 28 C.F.R. § 50.10(f)(1) (2016).

There is a small change to that phrasing. Instead of “newsgathering activities,” the Bondi regulation uses the phrase “the coverage or investigation of news, or while engaged in the performance of duties undertaken as a member of the news media.”

The significance of that change isn’t immediately apparent.

Conclusion

Despite proposals and legislative efforts dating back to the 1970s, Congress has never passed a federal reporters’ privilege law. That stands in sharp contrast to the fact that every state save Wyoming has either passed a “shield” statute or recognized some form of privilege in caselaw. Further, while some federal circuit courts of appeal have recognized various levels of privilege for journalists, others have declined to recognize a privilege or have left the question open.

Given the lack of statutory protections and the patchwork among the circuit courts, the news media guidelines at DOJ are the most important protection for newsgathering and reporting at the federal level. 

With the Bondi memo and regulation presaging a weakening of the guidelines and a revived focus at the department on media leaks — one where FBI agents and DOJ attorneys turn their investigative toolkits on journalists engaged in public interest newsgathering and source cultivation — it poses a serious threat to public interest newsgathering and the ability of the press to serve its watchdog function.

Footnotes

1. The Garland reforms required attorney general approval in fewer contexts but AG approval wasn’t as acute a need given that the policy implemented a bright-line rule barring compulsory process against journalists acting within the scope of newsgathering, with only narrow exceptions. The Garland policy retained the attorney general approval requirement for one of those exceptions: to prevent the imminent risk of death or bodily harm, including certain specified harms such as terrorist acts. 28 C.F.R. § 50.10(c)(3) (2022). (Return ↑)
2. See Bruce D. Brown & Gabe Rottman, Everything We Know About the Trump-Era Records Demands from the Press, Lawfare (July 6, 2021), https://www.lawfaremedia.org/article/everything-we-know-about-trump-era-records-demands-press. (Return ↑)