Biden’s Justice Department and the Press

Vague reporting makes it hard to know whether the latest scandal is scandalous.

Fred Ryan, the publisher of The Washington Post, writes that “Something appears to be ‘simply, simply wrong’ at the Biden Justice Department.”

During the final days of the Trump administration, the attorney general used extraordinary measures to obtain subpoenas to secretly seize records of reporters at three leading U.S. news organizations. After this was reported last month, President Biden rightly decried this attack on the First Amendment, calling it “simply, simply wrong” and assuring Americans that it would not happen in his administration.

Unfortunately, new revelations suggest that the Biden Justice Department not only allowed these disturbing intrusions to continue — it intensified the government’s attack on First Amendment rights before finally backing down in the face of reporting about its conduct.

After Biden took office, the department continued to pursue subpoenas for reporters’ email logs issued to Google, which operates the New York Times’ email systems, and it obtained a gag order compelling a Times attorney to keep silent about the fact that federal authorities were seeking to seize his colleagues’ records. Later, when the Justice Department broadened the number of those permitted to know about the effort, it barred Times executives from discussing the legal battle with the Times newsroom, including the paper’s top editor.

This escalation, on Biden’s watch, represents an unprecedented assault on American news organizations and their efforts to inform the public about government wrongdoing.

Last month, The Post learned of secret subpoenas authorized by President Donald Trump’s outgoing attorney general to obtain email information and home, cell and office telephone records of three Post reporters over a 3½-month span in 2017. We immediately requested an explanation and answers to several questions from the Justice Department as well as a meeting with the attorney general.

To date, no answers have been provided and the meeting has yet to take place. This delay is troubling. When asked about how the president’s assurances can be squared with his Justice Department’s behavior, White House press secretary Jen Psaki could offer no explanation. She subsequently released a statement disavowing White House knowledge of the actions that appear to have continued for several months during Biden’s presidency.

This is followed by several paragraphs on the sanctity of the 1st Amendment and its protection of press freedom. I doubt many OTB readers disagree, other than maybe at the margins, with that.

I saw reporting on this at both the Post and the Times over the weekend and wasn’t really sure what to think. I’m still not, absent more information.

The issue is that “the Justice Department” is a difficult villain. It’s an organization of more than 100,000 people with a $30 billion budget. Of those 30,000 people, only a handful are appointed by the President and, just a little over four months into a new administration, not all of even those are yet in place. So, when discussing actions taken by “the Justice Department,” it’s really important to understand who or at what level in the Justice Department we’re talking about.

If this is simply a story of bureaucratic inertia—an investigation that began under a previous administration taking its natural course absent new direction—it’s hard to get too upset over this. And that seems to me more likely than President Biden and Attorney General Garland doubling down on Trump’s vendetta against the nation’s elite media outlets.

Further, given Trump’s extreme politicization of DOJ, taking it to a degree arguably not seen since the days of Nixon and J. Edgar Hoover, one can hardly blame Biden and Garland for being rather ginger in issuing course corrections. Putting a halt to investigations started by the previous administration is, after all, a political interference of its own.

FILED UNDER: Law and the Courts, Media, US Politics, , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. SKI says:

    White House Disavows Knowledge of Gag Order on Times Leaders in Leak Inquiry

    The Biden administration said on Saturday that no one at the White House had been aware that the Justice Department was seeking to seize the email data of four New York Times reporters and had obtained a gag order in March barring a handful of newspaper executives who knew about the fight from discussing it.

    The administration also announced that the Justice Department was formally changing its leak investigation policy to ban seizures of reporters’ phone and email records in an effort to uncover their sources.

    President Biden had declared last month that he would not let prosecutors go after reporters’ communications data, after disclosures that the Trump Justice Department had secretly seized phone data of Washington Post reporters and phone and email data of a CNN reporter.

  2. gVOR08 says:

    But, but, Fast and Furious. How could the President not know about and in fact must have explicitly ordered every single action by every single government employee?

  3. WJS says:

    @gVOR08: For the media, it’s always nine years ago and the Democrats are to blame for everything because Daddy Republican will hit them if they think for themselves.

  4. Mister Bluster says:

    All governments lie, but disaster lies in wait for countries whose officials smoke the same hashish they give out.
    ― I.F. Stone, In a Time of Torment: 1961–1967

  5. Mimai says:

    Lively discussion. Must be a Monday thing.

  6. Jax says:

    @Mimai: I’m waiting for the post about how DOJ will continue to try to represent Trump in the E. Jean Carroll case. I really, really DO want an independent DOJ, and I understand that there’s supposed to be some continuity between Administrations…..but JFC.