On May 7, the Washington Post reported that the U.S. Department of Justice recently notified three journalists (two current Post reporters and one now at the New Yorker) that government officials in the Trump administration had subpoenaed their phone records for a period from April to July 2017. The Justice Department also sought “non-content” email records from that time but did not receive them.
The Justice Department seized the records as part of a leak investigation, and the move occurred as the Trump administration continued the post-9/11 trend of seeking to prosecute journalistic sources as spies for disclosing information to the news media.
It is unclear which reporting triggered the records seizure, though the three journalists worked on several stories during that period in 2017 that appeared to reference classified information. The first reported that then-Sen. Jeff Sessions had discussed the Trump campaign with the Russian ambassador to the United States before he became Trump’s first attorney general. The second story involved the Obama administration’s internal deliberations about how to combat Russian misinformation and interference in the 2016 election.
Interestingly, as noted, the Justice Department said in the letters that it had obtained a court order for email metadata, but did not obtain the information. The relevant email provider may have challenged the court orders somehow, the data may not have been recoverable or the Justice Department may have ultimately decided not to pursue the email records (among other possibilities).
What’s crucial to note is that the Justice Department decided to delay notifying the journalists before pursuing their records, which, under the Department’s current news media guidelines, is only contemplated in rare circumstances. Accordingly, Bruce Brown, executive director of the Reporters Committee, issued the following statement about the subpoenas:
“ Whenever the government seeks to obtain records of journalists’ communications, it raises serious First Amendment concerns because it interferes with the free flow of information to the public. For exactly that reason, the Justice Department has guidelines in place that require, with only narrow exceptions, notification to an affected news organization before federal prosecutors can seize a journalist’s toll records.
“It is imperative that the new Justice Department leadership explain exactly when prosecutors seized these records, why it is only now notifying the Post, and on what basis the Justice Department decided to forgo the presumption of advance notification under its own guidelines when the investigation apparently involves reporting over three years in the past.”
Brown also wrote a piece for the Columbia Journalism Review discussing concerns over the decision not to provide advance notification to the affected journalists. And the Post editorialized here, writing, “The incident strikes at the very heart of the ability of journalists to gather and report the news.”
In a related development, Reporters Committee attorneys filed a Freedom of Information Act lawsuit against the Justice Department on Tuesday to obtain records on the Trump administration’s approach to the news media guidelines. Earlier this year, Reporters Committee attorneys submitted FOIA requests seeking documents related to the Trump administration’s application of and deliberations concerning the news media guidelines. The requests were filed after Justice Department officials reportedly considered changing the rules for seizing journalists’ records.
The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Mailyn Fidler.