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The Justice Department is dropping the subpoenas it filed demanding grand jury testimony and phone records from New York Times journalists after sharp questioning Thursday from a federal judge who challenged almost every facet of the government’s approach.
The government had insisted that it was acting solely in the interest of national security. It filed subpoenas on July 10, just two days after the Times published the first of two stories about concerns that led to the U.S. Secret Service interceding to prevent President Trump from flying home from Turkey on the new Air Force One jet.
But at the hearing, presiding judge, U.S. District Court Judge Arun Subramanian, made clear he believed the Trump administration had violated protections given to journalists in black and white to uphold First Amendment principles. He also pointed to several instances of what he considered slipshod legal work and threatened to levy sanctions against federal attorneys for failing to follow the law and misleading the court in signed filings.
The case highlighted the Trump administration’s ongoing assault on press rights and the free flow of information to the public. It also provided another glimpse of the White House’s eagerness to assert an expansive definition of executive authority, as prosecutors argued the U.S. attorney general has the power to set aside legal protections for journalists when he deems necessary.
Judge: One way or another, the subpoenas would be canceled
All the same, at the Thursday afternoon hearing in Manhattan, the Justice Department’s legal team yielded to the inescapable logic of the moment: Subramanian had declared that if the subpoenas to the Times journalists were not withdrawn, he would quash them.
“It’s a great day for the First Amendment and a great day for the rule of law,” David McGraw, the lead newsroom lawyer for the New York Times, told NPR moments after the court hearing wrapped up. “Once again, the federal courts have stood up for what’s right in this country. We hope that’s the end of it.”
Sean Buckley, the deputy U.S. attorney for the Southern District of New York, declined to comment to NPR after the hearing. He presented the government’s case in court Thursday and told the presiding judge that he was leading the broader investigation into the leak of security information to the Times.
A Justice Department spokesperson issued a statement to NPR assailing the judge’s ruling and noting he threatened its attorneys with sanctions unless the subpoenas were withdrawn.
“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 spokesperson said. “Make no mistake, this investigation remains ongoing, and we will pursue justice against those threating national security by leaking classified information, a serious federal crime.”
In the court hearing, which lasted well over an hour, Judge Subramanian laced into Buckley’s logic for issuing the subpoenas just two days after the first Times article reported that Trump had left the NATO summit in Turkey on an older plane because of security concerns. A story the next day detailed many of the specific concerns.
The government offered to hold the subpoenas “in abeyance” for 14 days as it pursued other investigative avenues, Buckley told the court.
But that held little appeal for Subramanian.
Seeking testimony and materials from reporters as the federal government did is supposed to be a last resort, not a first move, the judge noted. He pointed to binding legal precedent as well as the Justice Department’s own current policy. How, Subramanian asked again and again, could it be a last resort if done just two days after publication?
Buckley said it was a last resort given what they knew at the time.
The judge didn’t buy that logic.
He later asked why Buckley did not know of the specific legal precedent protecting journalists prior to issuing the subpoenas as part of the investigation. That legal precedent was established in another case two decades ago that also involved The New York Times in the appeals circuit that includes New York.
“I don’t review every piece of paper,” Buckley responded.
Federal prosecutor says Attorney General can override journalistic protections
But he said that the subpoenas were properly authorized by the attorney general — presumably Acting U.S. Attorney General Todd Blanche. When they are approved by the attorney general, they can supersede any such protections, Buckley said, though he would not stipulate whether Blanche based his approval on national security, a threat to human life, or some other grounds.
In the polite language of the courtroom, Subramanian patiently upbraided prosecutors for asking another federal judge to authorize an order bidding mobile phone providers not to tell the journalists that their phone records had been subpoenaed — days after the Justice Department had already publicly confirmed the existence of the first round of subpoenas.
A federal attorney had said that telling the reporters of the demand for phone records would compromise the investigation by disclosing its existence — even though it was already known publicly and widely reported by the Times, NPR and other outlets.
Called forward by the judge, the attorney came forward and said it was an unintended mistake.
Buckley later apologized for subpoenaing the mobile telephone records of the mother of one Times journalist and two reporters’ spouses. He called it an honest mistake and said prosecutors had mistakenly relied on publicly available databases that associated those phone numbers with the reporters.
“These inadvertent errors — in hindsight you should have done things differently,” Subramanian said tersely. “These things are beginning to pile up.”
In his answers, Buckley repeatedly made it sound as though the period in which the subpoenas were issued was frenzied, with little immediate sense of what other avenues to pursue. The Times has reported that FBI Director Kash Patel himself directed the issuing of the subpoenas on July 10 compelling testimony from its reporters over a six-hour period at the White House.
The Justice Department has not commented on that.
Trump has reveled in the luxuriousness of the Boeing aircraft, a gift from the Qatari government. Outside analysts say it does not have the security capacity of past Air Force One aircraft. Trump said earlier this week the plane would be withdrawn from use while it is “maxed out.”
In an interview with NPR posted Thursday morning, the wife of Times reporter Julian E. Barnes, Katherine Marsh, described armed FBI officials coming to her front door as the couple watched the movie The Sheep Detectives with their eldest son.
“To me this felt really un-American,” Marsh said.
The movie focuses on a murder of a shepherd unraveled by his flock, which aids a somewhat hapless rural policeman in solving the crime.
“I can’t think of anything more inconsistent with The Sheep Detectives than having FBI agents show up at their doors,” the judge said toward the close of the hearing.
After the hearing, Marsh issued her own verdict in a text to NPR: “They should never have issued any of these subpoenas in the first place.”
