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Student Handout

SUBPOENAING REPORTERS

Current policy from the U.S. Department of Justice United States Attorneys' Manual:

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).

Department attorneys seeking the Attorney General's authorization to issue a subpoena to a member of the news media, or for telephone toll records of a media member, must submit a written request summarizing the facts of the prosecution or investigation, explaining the essentiality of the information sought to the investigation or prosecution, describing attempts to obtain the voluntary cooperation of the news media through negotiation and explaining how the proposed subpoena will be fashioned as narrowly as possible to obtain the necessary information in a manner as minimally intrusive and burdensome as possible. Specific principles applicable to authorization requests for subpoenas to members of the news media are set forth in 28 C.F.R. § 50.10(f)(1)-(6), and for subpoenas for telephone toll records of members of the news media in 28 C.F.R. § 50.10(g)(1)-(4). The Department considers the requirements of 28 C.F.R. § 50.10 applicable to the issuance of subpoenas for the journalistic materials and telephone toll records of deceased journalists.

Except in cases involving exigent circumstances, Department attorneys must also obtain the express approval of the Attorney General prior to the interrogation or arrest of a member of the news media for an offense which he or she is suspected of having committed during the course of, or arising out of, his or her coverage or investigation of a news story, or while he or she was engaged in the performance of his or her official duties as a member of the news media. The Attorney General's authorization must also precede the presentment of an indictment to a grand jury or the filing of an information against a member of the news media for any such offense. 28 C.F.R. § 50.10(h)-(l).

In cases or matters under the supervision of the Criminal Division, any request for the Attorney General's authorization pursuant to 28 C.F.R. § 50.10, and any related questions or concerns, should be directed to the Policy and Statutory Enforcement Unit of the Office of Enforcement Operations. In cases or matters under the supervision of other Divisions of the Department of Justice, the appropriate Division should be contacted.

In light of the intent of the regulation to protect freedom of the press, news gathering functions, and news media sources, the requirements of 28 C.F.R. § 50.10 do not apply to demands for purely commercial or financial information unrelated to the news gathering function. 28 C.F.R. § 50.10(m).