The Justice Department withdrew New York Times subpoenas seeking reporters’ records after a federal judge questioned whether prosecutors had followed the rules for demanding information tied to journalism, according to CNN, the Associated Press and Inner City Press.
The subpoenas were part of an investigation into leaks about alleged security problems involving a 747 aircraft received from Qatar. Prosecutors were trying to identify who gave information to New York Times journalists, not to charge the reporters themselves, DOJ lawyer Sean Buckley said during the hearing, according to Inner City Press’s live account.
U.S. District Judge Arun Subramanian pressed the department on Thursday over how the subpoenas were obtained and why prosecutors moved so broadly. The Justice Department initially defended the subpoenas as properly issued, according to Inner City Press, before agreeing during the hearing to withdraw them.
Why did the judge question the New York Times subpoenas?
Subramanian pointed to Second Circuit precedent governing when prosecutors can subpoena journalists, including the Gonzalez test, and questioned why the government had not handled the matter under that framework. Buckley argued that withdrawing or reworking the subpoenas could be read as accepting that the test applied, according to Inner City Press. Subramanian said he would not treat a withdrawal that way.
The judge also asked why prosecutors sought broad phone records when narrower methods may have been available. The Associated Press reported that some subpoenas swept in numbers belonging to one reporter’s mother and two journalists’ spouses. Buckley called those requests mistakes and apologized, saying they resulted from the department trying to move quickly, according to AP.
That explanation did not appear to satisfy the court. AP reported that Subramanian told prosecutors that the problems were accumulating.
What did prosecutors tell the issuing judge?
Another problem concerned what prosecutors disclosed when they first sought court approval. Assistant U.S. Attorney Kevin Sullivan, whose name appeared on the filings, was in the courtroom gallery before Subramanian called him to the government’s table, according to Inner City Press.
Subramanian asked Sullivan whether the judge who approved the subpoenas had been told they concerned reporters and the New York Times. Sullivan said prosecutors had not done so and described that omission as an oversight, according to Inner City Press. Sullivan also said prosecutors performed legal research later. When asked whether the existence of public reporting would have been relevant, Sullivan answered yes, Inner City Press reported.
Subramanian said that in an ordinary case, the situation would have led him to consider an order requiring the government to explain why it should not face sanctions over the subpoena process, according to accounts of the hearing.
After the hearing, the Justice Department criticized Subramanian in a statement reported by AP, saying he had threatened sanctions unless the subpoenas were withdrawn and had prevented prosecutors from presenting what the department called the careful process behind the investigation.
The department also said the grand jury was entitled to testimony from material witnesses in a criminal inquiry and argued that the judge’s handling of the matter blocked evidence in a national security investigation, according to AP. DOJ said the leak investigation is continuing and described classified leaks as a serious federal crime.
The practical result is narrower than the rhetoric: the challenged subpoenas are gone for now, while the leak probe remains alive. The hearing left a record of a judge faulting the government’s process in a case where press records triggered rules prosecutors are supposed to know before they start pulling phone data.
This story draws on original reporting from Techdirt.
