US government withdraws subpoenas aimed at forcing 3 NYT reporters to identify sources
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Criticized by a federal judge for sloppy legal work, the U.S. government on Thursday withdrew subpoenas that would have forced three New York Times reporters to testify about their sources for articles about U.S. President Donald Trump’s gift of Air Force One to Qatar.
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”.
“This is considered the most luxurious plane in the world,” said US President Donald Trump to reporters as he watched the upgraded Boeing 747 being delivered to join Air Force One. The aircraft was donated by Qatar and maintained by defense contractor L3Harris Technologies. Trump chose red, white, dark blue and gold for the plane, from the design used on Air Force One for decades.
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.
“Subpoenas are not the first thing you do, they are the last thing you do,” he said in an incident where he became tense and testified when he asked government lawyers about the steps they took in their investigation.
“When you see something like this, if it were a court, what I usually do is ask the parties to give reasons why sanctions should not be issued,” said the judge.
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.
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.
Additional subpoenas include a request for phone records of one reporter’s mother and two reporters’ spouses. The motion noted the mother in question is a mental health professional with a confidential client relationship and that one of the two spouses is general counsel for the law firm.
