Government withdraws subpoenas of 3 reporters for The New York Times after admitting legal errors

NEW YORK — Criticized by a federal judge for sloppy legal work, the government on Thursday grudgingly withdrew subpoenas that would have compelled three New York Times reporters to testify about their sources for articles about President Donald Trump's Qatari-gifted Air Force One jet.

The withdrawals in U.S. District Court followed a remarkable back and forth between a visibly irritated Judge Arun Subramanian and government lawyers. They come at a time when the Trump administration is vigorously going after news organizations whose reporting and coverage it doesn’t like — and also trying to crack down on leaks inside the government.

The government's retreat in the face of vigorous legal opposition and a stern reprimand from a judge marked the latest instance of the Justice Department pulling back on 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 journalists for The Washington Post and The Wall Street Journal related to separate national security coverage.

Subramanian said he otherwise would have granted the newspaper’s request to reject the subpoenas because laws and regulations pertaining to subpoenas served on journalists maintain that they should be issued as a last resort in an investigation.

“Subpoenas are the last step, not the first step, but the last step,” the judge said, citing rules set to protect against violations of the First Amendment. He said the government’s actions had turned the law and the regulations “on its head.”

“When you see something like this, if this were a civil proceeding, what I would normally do is ask the parties to show causes why sanctions should not be issued,” the judge said, referencing punishment for lawyers for egregious actions.

After the hearing, the Justice Department lashed out at the judge in a statement, saying he “threatened our attorneys with sanctions unless subpoenas were withdrawn, and blocked us from presenting the meticulous process of this investigation.”

“The grand jury has a right to hear testimony from all material witnesses in a federal criminal investigation. This judge’s conduct overrides clear longstanding principles and common sense — blocking the grand jury from receiving core evidence in a national security investigation,” the statement said.

“Make no mistake,” it added, “this investigation remains ongoing, and we will pursue justice against those threatening national security by leaking classified information, a serious federal crime.”

Government attorneys upbraided by judge

Subramanian noted that with protections for journalists at stake, the government was required to ensure it could not obtain what it needed from any other sources before issuing subpoenas to journalists.

A Justice Department lawyer, Sean Buckley, cast the government’s missteps as inadvertent errors and said “no one was trying to pull a fast one.” Buckley apologized for other subpoenas that sought records for phone numbers belonging to one reporter’s mother and two of the journalists’ spouses.

“That was an error, judge, which we own,” Buckley said. “It was a consequence of trying to move quickly.”

“These things are starting to pile up,” Subramanian said, becoming increasingly testy.

The hearing was held publicly despite efforts by the Trump administration to keep secret the litigation spawned by subpoenas it served on the Times’ journalists to try to get them to divulge their sources.

The newspaper’s lawyers had challenged the validity of the grand jury subpoenas, along with subpoenas issued for phone records of several Times journalists and some of their relatives. Senior Times officials, including the paper’s managing editor and general counsel, sat in the gallery watching during Thursday's proceedings.

The request for phone records raised questions about the extent of the investigation being carried out by the Justice Department.

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

“We are pleased that the government finally conceded that the subpoenas violated the law, but they should never have been issued in the first place,” he said. “We will not be deterred in the face of tactics like these.”

Court action comes after reporting on new Air Force One jet

The new jet in question, a present from Qatar that Trump's administration spent $400 million to retrofit and upgrade, recently entered service. But Trump used an older model Air Force One jet to leave a NATO summit in Turkey earlier this month.

The Times, citing anonymous sources, reported that the switch had come at the urging of the Secret Service and that the newer plane lacked some of the advanced security features of the older Air Force One aircraft, including antimissile capabilities. On social media, Trump rejected claims of security concerns.

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

It said that lengthy stretch of records sought would indicate that the purpose of the subpoenas might have been “to forage for information about the Journalists’ source relationships more broadly.”

The Times argued for the phone records subpoenas to be disallowed on the grounds that the government had acted in “bad faith” and ignored its own protocols by not giving the journalists advance notice that records were being sought and by demanding the information “without first conducting any serious investigation.”

The Justice Department has justified the grand jury subpoenas by saying that "reporters are not the targets, those leaking classified information are."

The Justice Department also said it had complied with its own regulations in issuing the subpoenas and had taken investigative steps before seeking them. It said it was authorized to delay disclosing the subpoenas but decided to alert the journalists’ lawyers so they could challenge them.

In fighting the subpoenas, the Times' lawyers highlighted how the government's carelessness could have exposed sensitive information that had nothing to do with the journalists. The mother whose phone records were mistakenly sought is a mental health professional with confidential client relationships and one of the two spouses is the general counsel of a law firm, the lawyers said.

At Thursday’s hearing, a final rebuke from the judge to the government came when he asked its lawyers to assure him that it won’t repeat a scenario that left one journalist being served a subpoena by an FBI agent while he was home watching the family-friendly movie “The Sheep Detectives,” about sheep on a quest to solve the murder of their shepherd.

Said the judge, to loud courtroom laughter: “I can’t think of anything more inconsistent with ‘Sheep Detective’ than an FBI agent showing up at your door.”

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Associated Press Writer Eric Tucker reported from Washington

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