From the Fall 2001 issue of The News Media & The Law, page 32.
Internal guidelines require the Justice Department to follow a specific procedure when it subpoenas a member of the news media. The guidelines, know as the “Attorney General Guidelines on Subpoenaing the News Media,” are part of the U.S. Attorneys’ Handbook and appear in the Code of Federal Regulations.
Employees who violate these guidelines may receive an administrative reprimand, but violation does not automatically render the subpoena invalid or give a journalist the right to sue the Justice Department.
The guidelines do not apply to government agencies that are not part of the federal Department of Justice.
• All reasonable attempts should be made to obtain the information from alternative sources.
• Negotiations with the media are required, unless negotiations for long-distance telephone records would pose a substantial threat to the integrity of the investigation.
• The attorney general must authorize the subpoena.
Subpoenas in criminal cases:
• The department must have reasonable grounds to believe, based on information from non-media sources, that a crime has occurred.
• The information sought must be essential to the investigation and not peripheral, nonessential or speculative.
Subpoenas in civil cases:
• The information sought must be essential to the litigation in a case of substantial importance. Again, the information can’t be peripheral, nonessential or speculative.
Subpoenas for long-distance phone records:
• The department must have reasonable grounds to believe a crime has been committed.
• The information sought must be essential to the investigation of a crime.
• The subpoena must be narrowly drawn and directed at relevant information. It must cover a reasonably limited time period.
• The government should have pursued all reasonable alternative investigative steps.
• The member of the news media whose phone records are subpoenaed shall be given reasonable and timely notice of the attorney general’s authorization of the subpoena, unless advance notice would pose a clear and substantial threat to the investigation. If no advance notice is given, the notice must occur within 45 days of any return made pursuant to the subpoena, although such notice can be delayed for no more than another 45 days. (28 CFR § 50.10)