US government withdraws subpoenas aimed at forcing 3 NYT reporters to identify sources

Criticized by a federal judge for sloppy legal work, the US government on Thursday withdrew subpoenas that would have forced three New York Times reporters to testify about their sources for articles about US President Donald Trump’s Air Force One flight.

The withdrawal in US District Court followed a dispute between a visibly angry Judge Arun Subramanian and government lawyers. They come at a time when the Trump administration is aggressively going after news organizations that don’t like reporting and reporting — and trying to crack down on leaks within the government.

The government’s withdrawal in the face of strong legal opposition and a strong rebuke from the judge marked the latest example of the Justice Department backing down from its aggressive efforts to compel journalists to identify their sources before a grand jury. The administration recently withdrew similar subpoenas that sought to compel testimony in Virginia from reporters for the Washington Post and the Wall Street Journal.

Subramanian said that otherwise he would have accepted the newspaper’s request to refuse to be summoned to court because the rules and regulations that affect the summoning of journalists say that it must be issued as a last resort in the investigation.

‘Subpoenas are a last resort,’ the judge said

“Subpoenas are the last resort, not the first resort, but the last resort,” the judge said, citing laws put in place to prevent violations of the First Amendment. He said the government’s actions had turned the law and regulations “on its head”.

“When you see something like this, if it was a civil case, what I usually do is to ask the parties to give reasons why sanctions should not be issued,” said the judge, talking about the punishment that will be given to lawyers for bad actions.

After the trial, the Justice Department lashed out at the judge in a statement, saying it “threatened our attorneys with sanctions unless the subpoenas were withdrawn, and prevented us from launching a thorough investigation.”

“A grand jury has the right to hear testimony from all material witnesses in a federal criminal investigation. This judge’s conduct overrides long-standing clear principles and common sense – preventing a grand jury from obtaining evidence that is fundamental to a national security investigation,” the statement said.

“Make no mistake, this investigation is ongoing, and we will pursue justice for those who threaten national security by leaking classified information, which is a serious federal crime.”

Subramanian noted that since vulnerable journalists are protected, the government should have ensured that it is not getting what it needs from any other sources before issuing summons to journalists.

A Justice Department attorney, Sean Buckley, dismissed the government’s mistakes as inadvertent mistakes and said “no one was trying to pull a fast one.” Buckley apologized for other subpoenas that sought the phone numbers of one reporter’s mother and two reporters’ spouses.

“That was a mistake, judges, it was his,” said Buckley. “It was the result of trying to move quickly.”

“These things are starting to pile up,” Subramanian said, bearing witness.

The administration is trying to keep the case secret

The hearing was public despite the Trump administration’s efforts to keep secret the lawsuit filed by Times reporters to try to get them to reveal their sources.

Lawyers for the newspaper challenged the legality of the subpoenas, as well as the subpoenas issued to obtain the phone records of several Times reporters and some of their relatives. Senior Times officials, including the paper’s editor-in-chief and general counsel, were sitting in the gallery watching as the hearing proceeded Thursday.

The call records request has raised questions about the extent of the investigation by the US Department of Justice.

David McCraw, the Times’ general counsel, said after the hearing in a statement that it was “an important affirmation of our country’s commitment to a free press.”

“We are happy that the government has finally admitted that the summons violated the law, but they should not have been issued in the first place,” he said. “We will not be discouraged when we are faced with tactics like these.”

The new plane in question, a gift from Qatar that the Trump administration spent $400 million to restore and upgrade, has just begun operating. But Trump used an old Air Force One to leave a NATO summit in Turkey earlier this month.

The Times, citing anonymous sources, reported that the change came at the urging of the Secret Service and that the new plane lacks the advanced security features of the older Air Force One, including anti-missile capabilities. On social media, Trump denied the allegations of security concerns.

The subpoenas sought records dating back to Jan. 1

The Times wrote in a letter to the judge a few days ago that the two subpoenas seeking records began on Jan. 1, long before the newspaper published the articles on July 8 and July 9 that became the basis for the grand jury summons.

It said the lengthy records sought would show that the purpose of the appeals could have been “to seek information about the relationship of journalists in general.”

The Times argued that the phone records were admissible on the grounds that the government acted in “bad faith” and violated its own rules by not giving reporters advance notice that the records were wanted and by seeking information “without conducting a thorough investigation.”

The Justice Department justified the grand jury subpoena by saying “journalists are not the target, those who leak classified information are.”

The Justice Department also said it followed its own rules in issuing subpoenas and took investigative steps before seeking them. It said it was authorized to delay disclosing the subpoena documents but decided to call the journalists’ lawyers to challenge them.

In fighting the subpoena, Times lawyers pointed out how the government’s negligence could have exposed sensitive information unrelated to the reporters. The mother whose phone records were accidentally sought is a mental health professional with confidential client relationships and one of the two spouses is general counsel for a law firm, attorneys said.