Deputy Attorney General Rod Rosenstein on Tuesday defended changes to the US Department of Justice's manual for prosecutors, saying the removal of language about press freedom was part of an effort to focus that part of the manual on the "confidentiality obligations" of department employees.
Rosenstein was asked at a Law Day event in Washington, DC, about a recent BuzzFeed News report that identified several changes to the US Attorneys' Manual, including the deletion of a section titled "Need for Free Press and Public Trial." Rosenstein called the framing "completely misleading" and said the department was committed to upholding the First Amendment. The media contacts policy had been rewritten to focus less on the media, he said, and more to remind prosecutors of their duty to not share classified or other nonpublic information.
Rosenstein questioned the timing of story, noting the changes were made in November. The Justice Department did not publicly announce that it was overhauling the manual when the process started last year and did not announce the changes to the media contacts policy; the department declined to comment on specific manual changes prior to the publication of BuzzFeed News' story.
Department spokesperson Ian Prior provided a statement at the time saying that the manual was intended to be a "quick and ready reference" for lawyers and not "an exhaustive list of constitutional rights, statutory law, regulatory law, or generalized principles of our legal system." Prior said that Rosenstein had ordered the review of the manual and that career prosecutors were involved in the process.
"The First Amendment is protected here, in the US Constitution. It's not protected by the US Attorneys' Manual, but it is protected by the Department of Justice," Rosenstein said on Tuesday, holding up a copy of the Constitution. "I can assure you that our employees, particularly our employees who deal with the media, are very cognizant of First Amendment concerns."
The deleted section, which had been in versions of the manual dating back to at least to 1988, had read as follows:
"Likewise, careful weight must be given in each case to the constitutional requirements of a free press and public trials as well as the right of the people in a constitutional democracy to have access to information about the conduct of law enforcement officers, prosecutors and courts, consistent with the individual rights of the accused. Further, recognition should be given to the needs of public safety, the apprehension of fugitives, and the rights of the public to be informed on matters that can affect enactment or enforcement of public laws or the development or change of public policy."
The updated media contacts policy in the manual included new language about not sharing classified information, reporting contacts with the media, and whistleblower protections — reflecting the Trump administration's broader efforts to crack down on government leaks. The manual kept language about balancing the right of the public to get information about the Justice Department and the department's preference for open court proceedings.
The section of the manual that lays out procedures for subpoenaing journalists, which was last updated under Attorney General Eric Holder, is under review, Rosenstein said. A number of prosecutors had raised concerns about aspects of the policy, he said, noting that it requires a higher level of approval than subpoenas for non-journalists.
The Law Day program's moderator, law professor Ronald Collins, also asked Rosenstein about the deletion of language from the civil rights section of the manual about redistricting and racial gerrymandering issues. Rosenstein said the changes were recommended by career attorneys at the department and approved by political staff; he said he has not been involved in every aspect of the review and was not aware of those changes until they were reported.
Two sections were deleted. The first read, "Section 2 of the Voting Rights Act, 42 U.S.C. § 1973, bars voting practices that have a discriminatory result or intent. It is the main litigation tool available for attacking electoral systems and redistricting plans that dilute minority voting strength, i.e., that deny minorities a fair opportunity to elect candidates of their choice."
The updated version of the manual includes language about the Voting Rights Act's prohibitions against discriminatory practices, but no longer includes a specific reference to redistricting-related issues.
The second deleted section read, "The Voting Section defends from unjustified attack redistricting plans designed to provide minority voters fair opportunities to elect candidates of their choice and endeavors to achieve racially fair results where courts find, following Shaw v. Reno, 113 S.Ct. 286 (1993), and Johnson v. Miller, 115 S.Ct. 2475 (1995), that redistricting plans constitute unconstitutional racial gerrymanders."
Rosenstein said on Tuesday that a "determination was made that the guidance was unnecessary and outdated and addressed an issue that had not arisen in the past decade or more."
A Justice Department spokesman declined to elaborate on what types of cases Rosenstein was referring to. The department has handled cases related to redistricting and allegations of voter dilution under Section 2 of the Voting Rights Act within the past decade, according to the DOJ's website. That has included litigation over Texas's redistricting plans, which the department challenged under the Obama administration. The Justice Department under Attorney General Jeff Sessions sided with Texas when the case was argued before the US Supreme Court earlier this month.
The cases brought within the past decade did not appear to cite Shaw v. Reno, which involved claims of unconstitutional racial gerrymandering.
Rosenstein said on Tuesday that the goal of the review was to make sure the manual was a practical resource for prosecutors to turn to, with a focus on commonly occurring situations they might encounter in their work.
"The directions that we gave to the folks who did the review were, if there’s anything in there that’s just rhetoric, that’s not serving any purpose in terms of guidance, we can delete it."