Michael Weinstein, a former Justice Department prosecutor and criminal defense lawyer in New Jersey, said he understood Biden's comments as making clear his disdain for the practice without necessarily precluding the possibility that it could ever be used under any circumstances.
The latest revelation came Friday night when the Times reported the existence of a gag order that had barred the newspaper from revealing a secret court fight over efforts to obtain the email records of four reporters.
The US justice department attempted to obtain email logs of four New York Times journalists in an bid to identify sources, the newspaper reported. The Biden administration informed a handful of Times executives about the battle, but imposed a since-lifted gag order that prevented the executives from disclosing the efforts even to the executive editor, Dean Baquet. Inside the Justice Department, officials have on several occasions over the years revised internal guidelines to afford media organizations better protection without ever removing from their arsenal the prerogative to subpoena reporters' records.
The U.S. Justice Department said Saturday that it no longer will secretly obtain reporters' records during leak investigations, a policy shift that abandons a practice decried by news organizations and press freedom groups.
"Members of the news media have now been notified in every instance" where their records were sought in 2019 and 2020 in leak investigations, Justice Department spokesman Anthony Coley said Wednesday.
After those disclosures, Biden told a reporter he would not allow the Justice Department to persist in obtaining reporter phone records.
The gap in time likely reflects that the Justice Department regards the seizure of phone records as a last resort when other avenues in a leak investigation have been exhausted.
The Justice Department has informed another one of former President Trump's least favorite media outlets that it secretly seized its reporters' phone records during his administration. The department said the reporters are neither subjects nor targets of the investigation, but did not reveal which leak was under investigation.
The newspaper said the timing of the seized records and the reporters involved in the investigation suggest that the leak probe involved an April 22, 2017, Times report about former FBI Director James Comey's handling of different investigations during the 2016 election.
Jeff Sessions, who served as Trump's first attorney general, announced in 2017 an aggressive government crackdown on leaks.