Attorney General Bondi’s revocation of some procedural protections for the press in respect of government leaks could set the stage for a high-profile showdown between the Trump administration and the press over leakers inside the government.  

The pivot on procedure is spelled out in a new Department of Justice memorandum. The new standard for prosecutors to determine whether to use court orders that seek to compel journalists to give up their sources is now whether there are “reasonable grounds to believe that a crime has occurred and the information sought is essential to a successful prosecution.” 

That marks a switch from the policy put in place by Attorney General Garland — called “news media guidelines” — that restricted how prosecutors could pursue leak investigations. That came after Mr. Garland disclosed in 2021 that the first Trump administration had secretly perused the phone records of four reporters for the New York Times, likely for a leak probe that the justice department was conducting regarding the FBI director, James Comey, and his retinue. President Biden called that “simply, simply wrong.” 

Now comes Ms. Bondi to argue 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.”  

The policies promulgated by Mr. Garland offered some protections to journalists from subpoenas, court orders, and search warrants — basics in the prosecutorial toolbox — based on the “receipt, possession, or publication” of classified information. Journalists were protected as long as their actions could be understood as transpiring within the “scope of newsgathering.”

Mr. Garland gave that category a wide berth, contending that even the receipt, possession, and publication of classified information could be reckoned as newsgathering. The leaking of such information, though, could be a violation of the Espionage Act of 1917, which prohibits the sharing of secret information with “unauthorized persons.” Special Counsel Jack Smith charged Mr. Trump with dozens of violations of the Espionage Act for his storage of documents at Mar-a-Lago. 

Mr. Garland’s move was a major departure not only from the policies of Mr. Trump’s first term but also from those of President Obama, who with alacrity pursued —  and sought harsh punishment for — government leakers. A Times journalist, James Risen, who saw one of his sources prosecuted by Attorney General Holder, called the Obama administration “the greatest enemy to press freedom.” 

Ms. Bondi’s memo explains that the change from Mr. Garland’s policies is necessary to protect “classified, privileged and other sensitive information,” a category that is broader than the criminal code. Ms. Bondi writes that the DOJ “will not tolerate unauthorized disclosures that undermine President Trump’s policies, victimize government agencies, and cause harm to the American people.”  

The memo cites the leak investigation that is ongoing at the Pentagon. The director of national intelligence, Tulsi Gabbard, recently issued two criminal referrals to the DOJ that center on what she calls on X “intelligence community LEAKS” by individuals who double as “deep-state criminals.” Ms. Gabbard’s deputy chief of staff posted separately that “two intelligence community leakers” were referred, and that the leaks contributed to a Washington Post article on the Tren de Aragua gang. 

Ms. Bondi accuses the Biden administration of having “abused Garland’s overly broad procedural protections for media allies by engaging in selective leaks in support of failed lawfare campaigns,” and contends that the “leaks have not abated since President Trump’s second inauguration.”

Under the new dispensation, the news media “must answer subpoenas when authorized at the appropriate level within the Department of Justice.” In the Supreme Court case of New York Times Company v. United States, which turned on the publication of the Pentagon Papers, the justices held that the government’s mere invocation of “security” is not sufficient “to abrogate the fundamental law embodied in the First Amendment.” 

Journalists for publications large and small have been jailed over the years — usually at the order of judges in federal or state courts — for refusing to disclose their sources. Ms. Bondi’s  memo does appear to hedge on the matter of sanctions. It vows to “limit the use of compulsory legal process” to obtain records from the press and acknowledges that a “free and independent press is vital to the functioning of our democracy.” 

Under the new regulations, the attorney general — now Ms. Bondi — “must also approve efforts to question or arrest members of the news media.”

Ms. Bondi vows to protect the “bedrock” principle of a free Fourth Estate despite “the lack of independence of certain members of the legacy news media.” She also reflects that “investigative techniques relating to newsgathering are an extraordinary measure to be deployed as a last resort when essential to a successful investigation or prosecution.”