NEW YORK — The Justice Department agreed Thursday to withdraw an attempt to force New York Times reporters to reveal to a grand jury their sources for a story on national security concerns about the Qatari-gifted airplane to replace Air Force One.
After rapid-fire questions from an upset judge and a mention of potential sanctions against prosecutors for the Justice Department, the government admitted to making several “mistakes” when launching an investigation that targeted journalists with subpoenas.
During an hourlong court hearing, U.S. District Judge Arun Subramanian grilled one of the highest-ranking prosecutors at the Southern District of New York over the DOJ’s ongoing attempt to identify the sources behind Times articles that revealed that security concerns prevented President Donald Trump from using his new airplane on a return trip from Turkey earlier this month.
Prosecutors told the judge that acting Attorney General Todd Blanche personally signed off on subpoenas that sought to force Times reporters Julian E. Barnes, Eric Lipton, Eric Schmitt, Tyler Pager and Adam Goldman to reveal the identities of the government officials who spoke to them.
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Lawyers for the Times sought to quash those subpoenas.
Sean Buckley, a longtime SDNY prosecutor who is currently listed as the chief counsel to the U.S. attorney in that office, remained defensive as he stood to answer a barrage of questions from the judge.
Buckley said he oversaw the investigation and knew about the established restrictions limiting the government’s ability to pressure journalists to give up their sources, but that “those additional steps were not yet identified” by prosecutors before they pursued subpoenas.
“No one was looking to pull a fast one on the courts or anyone else,” he told the judge.
Subramanian asked a series of questions about the way the government sent FBI agents to reporters homes on July 10 to serve subpoenas compelling them to testify before a grand jury — and later tried to order communication service providers to fork over records of the reporter’s phone exchanges.
The backdrop to his questions is decades of government attempts to spy on journalists that resulted in First Amendment legal protections — in the form of official DOJ internal policies and case law — that demand prior authorization from DOJ brass and an investigation involving immediate risk to human lives.
The DOJ is also limited in its ability to force companies to keep silent about government attempts to acquire records of their customers’ private communications if the target is a reporter engaged in their constitutionally protected right to free speech.
Subramanian repeatedly asked Buckley if the government would be willing to simply withdraw the subpoenas. For the first hour, the prosecutor wouldn’t budge.
Subramanian quickly brought up how prosecutors, in court filings earlier this week, said they at first had not alerted lawyers for the journalists about subpoenas to third parties for phone numbers. The revelation came in a letter on Monday in which prosecutors cited “additional case law that the government identified after the issuance of the subpoenas.”
“Doesn’t that mean you failed the Gonzalez test?” the judge asked, referring to the appellate case that created that requirement.
“Those additional steps were not yet identified,” Buckley responded.
“Why doesn’t that mean that the motion to quash is granted?” the judge replied, shaking his head.
Subramanian remained focused on what he described as the government’s failure to properly investigate a matter before threatening journalists with jail time if they didn’t reveal their sources. The judge stressed that prosecutors were bound by a responsibility to investigate the matter before resorting to a drastic measure that would implicate “the profound First Amendment and free press issues.”
“Doesn’t that turn the law and regulation on its head?” the judge asked. “Subpoenas are the last step, not the first step.”
Subramanian added: “It’s a matter of just basic compliance to the law.”
Buckley contended there was an exception to those restrictions that allows the nation’s attorney general to approve intrusive subpoenas, but that only drew further rebuke from the judge after he read the statute.
“How is this an exception of the basic rule that’s literally two provisions above it?” Subramanian said.
He referred to the provision that says “the government should have made all reasonable attempts to obtain the information, communications records, or business records from alternative sources.”
The DOJ was placed yet again on the defensive when the judge demanded that prosecutors explain why they had also sought the communication records of two Times reporters’ spouses and another reporter’s mother.
“That was an error which we own,” Buckley said. “It was a consequence of us trying to move quickly.”
Subramanian then demanded to hear from Kevin Sullivan, a prosecutor who normally works on high-profile terrorism cases but was on this investigation’s team. The judge commanded Sullivan to get up from the gallery, where he was sitting with the crowd, and position himself at the prosecution team’s table.
Subramanian then questioned why Sullivan signed off on a subpoena on July 14 that stated the investigation was not public — days after the Times had already published a story about it.
“Your Honor, the wording was imprecise,” Sullivan said.
And when Sullivan tried to privately converse with his fellow prosecutors, the judge interrupted him with a “hold on!” Subramanian then asked Sullivan why his subpoena application to another judge made no mention that the supposedly non-public investigation was in fact a highly publicized and controversial national story involving the Times.
“Judge, it was an oversight on the government’s part,” Sullivan said, while throwing up both hands with a shrug.
Subramanian raised the possibility of personally holding the prosecutors accountable for misconduct, noting that, in a civil case, he would now be considering sanctions. He then turned back to Buckley.
“Are you still on this investigation?” he asked.
“Yes, Your Honor.”
“So, are you going to do this again?” the judge said.
“Absolutely not, Your Honor,” Buckley said.
Subramanian later pressed Buckley on how the senior prosecutor could make so many missteps while claiming to have already been familiar with the rules. Buckley then said he doesn’t “review every piece of paper” under his command.
Prosecutors called for a five-minute break, during which Buckley walked out of the courtroom. He was seen placing four phone calls and quickly typing messages on his phone as he paced along a window that faced Lower Manhattan.
When someone called him, Buckley ducked into a conference room. Once he was back in the courtroom, Buckley said the government was now prepared to “unilaterally withdraw” the subpoenas — but that the investigation would continue and that reporters might be subpoenaed again in the future.
“Moving forward, we’re not going to have the kinds of errors that have plagued this case so far?” the judge asked.
“No, your Honor,” Buckley said.
Subramanian then made Buckley “pledge” that he would follow the law and regulations, referring to the exchange as a necessary “soliloquy.”
David O’Neil, a Washington lawyer representing the newspaper, noted that “the record here is replete with bad faith.”
Buckley leaned into the microphone.
“We dispute any allegation of bad faith, and we’ll leave it at that.”
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