Midway through the Obama administration, Attorney General Eric H. Holder Jr. drafted the leak inquiry regulations after an uproar over revelations in May 2013 about the seizures of communications records of reporters in two leak investigations. The rules — which the Trump administration left in place — tightened limits on such inquiries.
Efforts to seize reporters’ records are “extraordinary measures, not standard investigatory practices,” the regulations state, permitting prosecutors to pursue such steps only with the highest level of approval, when all other means have been exhausted, and after pursuing negotiations with the affected reporter or news organization.
The regulations make an exception to that requirement of advance notification only if “the attorney general determines that, for compelling reasons, such negotiations or notice would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security or present an imminent risk of death or serious bodily harm.”
The Justice Department apparently told the magistrate judge that imposing a gag order on Google was justified, because — as the judge wrote — “there is reason to believe that notification of the existence of this order will seriously jeopardize the ongoing investigation, including by giving targets an opportunity to destroy or tamper with evidence.”
It is not clear how prosecutors made that case, since the existence of the leak investigation and its subject matter — which appeared to focus on James B. Comey Jr., the former F.B.I. director, and a document Russian hackers had stolen — was already public knowledge; The Times had reported on it almost a year earlier. On Saturday, David McCraw, a top lawyer for the newspaper, said it would petition the judge to unseal the filings that prosecutors made laying out arguments in support of the secret order.
During the transition to the Biden administration, at least one official wrote in a memo for the incoming Biden team that the Comey leak investigation that gave rise to the attempt to seize the reporters’ email records should be closed, according to a person familiar with the matter.
After Mr. Biden took office, the administration placed acting officials in key positions in the department while it waited for the president’s nominees to be confirmed by the Senate. Monty Wilkinson, a career official, became the acting attorney general.