9-13.400
News Media Subpoenas; Subpoenas for Telephone Toll Records of News Media; Interrogation, Arrest, or Criminal Charging of Members of the News Media
In recognition of the importance of freedom of the press to a free and democratic society, it is the Department's policy that the prosecutorial power of the Government should not be used in such a way that it impairs a reporter's responsibility to cover as broadly as possible controversial public issues. Accordingly, Government attorneys should ordinarily refrain from imposing upon members of the news media forms of compulsory process which might impair the news gathering function. In all cases, members of the Department must balance the public's interest in the free dissemination of ideas and information with the public's interest in effective law enforcement and the fair administration of justice. The policies, procedures and standards governing the issuance of subpoenas to members of the news media, subpoenas for the telephone toll records of members of the news media, and the interrogation, indictment, or arrest of members of the news media are set forth in 28 C.F.R. § 50.10.
The Attorney General's authorization is normally required before the issuance of any subpoena to a member of the news media or for the telephone toll records of a member of the news media. However, in those cases where the media member or his or her representative agrees to provide the material sought and that material has been published or broadcast, the United States Attorney or the responsible Assistant Attorney General may authorize issuance of the subpoena, thereafter submitting a report to the Office of Public Affairs detailing the circumstances surrounding the issuance of the subpoena. 28 C.F.R. § 50(e).
Before considering issuing a subpoena to a member of the news media, or for telephone toll records of a member of the news media, Department attorneys should take all reasonable steps to attempt to obtain the information through alternative sources or means. 28 C.F.R. § 50.10(b). In addition, Department attorneys contemplating issuing a subpoena to a member of the news media must first attempt negotiations with the media aimed at accommodating the interests of the trial or grand jury with the interests of the media. 28 C.F.R. § 50.10(c). Negotiations with the affected media member must also precede any request to subpoena the telephone toll records of any member of the news media, so long as the responsible Assistant Attorney General determines that such negotiations would not pose a substantial threat to the investigation at issue. 28 C.F.R. § 50.10(d).
It appears that Holder is required by law to authorize such subpoenas as clearly the circumstance was not one where the media members agreed to provide the material sought.
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